Welcome to part 3 of my#citylis dissertation blog, discussing the impact of EU and UK legislation on the use of Orphan Works by UK Cultural Heritage Institutions. Part 1 is here, part 2 here.

To recap, orphan works are works for which the rights holder (author, producer) is unknown or cannot be located. These pose a major barrier to cultural heritage institutions wishing to make their collections available online, since making them available online without permission from the rights holder would constitute copyright infringement. This is because Copyright law states that the act of reproduction (for example scanning) and making available (such as through a website) are the exclusive rights of the author/creator. If cultural heritage institutions were to make such works available without permission they would be infringing Copyright leading to potential financial and reputation damage, from a claim by a reappearing rights holder.

To resolve this issue legislators around the world have adopted different solutions ranging from national licensing schemes, exceptions to copyright, to proposals for limiting the amount of damages paid in infringement cases.

Canada

Act 77 of the Canadian Copyright Act allows anyone seeking to use in Copyright works where they are unable to locate the rightsholder to apply for a license to the Canadian Copyright Board. The Board will evaluate if the efforts made to locate the rightsholder are sufficient and may then grant a license. Licenses are non-exclusive but permit certain uses including reproduction, publication, performance, and distribution.

Licensees are required to pay royalties to the Collective societies, to be held as compensation for a reappearing rightsowner. Collective societies were required to hold the royalties for upto 5 years after the expiry of the license after which they were entitled to ‘dispose of the royalties as it sees fit for the general benefit of its members’. However, this practice was abandoned and the collective societies were able:

to use the unlocatable owners’ royalties as they saw fit from the outset, as long as the collective undertook to compensate the owner if necessary. (De Beer & Bouchard 2009)

The Canadian legislation appears to have had a limited effect as to date less than 300 licenses have been issued since (Copyright Board of Canada). The Report of the Register of Copyrights (2015) notes that several studies have drawn attention to low usage and flaw in the Canadian system.

Germany

German legislation on orphan and out-of-commerce works was passed on 1/10/2013 and entered into force on 1/1/2014. The amendments to the Copyright Act represented Germany’s implementation of the EU Orphan Works directive, permitting the digitisation and making available to the public, under certain conditions, of qualifying works from the collections of publicly accessible libraries, educational institutions, museums and archives. (VGWort.de)

The legislation establishes a presumption that a collecting society administering the rights in such works is also entitled to do so for the works of non-members provided that the usage is non-commercial, the works in question are recorded in the Register of Out-of-Commerce Works maintained by the German Patent and Trademark Office and the rightsholder has not objected within six weeks of registration.

Hungary

The Hungarian Copyright Act (HCA) tackles orphan works in three distinct sections. The HCA was amended in 2003 by Act CII to include a free use provision that permits libraries, archives and other educational institutions, to provide limited onsite access to works in their collection, including orphan works, via dedicated terminals for educational and scholarly research purposes.

Specific legislation dealing with orphan works, came into effect 1 February 2009. The orphan works specific provisions of the HCA allow the Hungarian Intellectual Property Office (HIPO) to grant licenses for both commercial or non-commercial uses of orphan works. Applicants must complete a documented diligent search and pay compensation for their use.

Japan

Article 67 of the Japanese Copyright Law allows users who have been unable to locate or identify the rightsholder of a work after due diligence to apply for a compulsory license. Applicants must deposit compensation for reappearing rightsholders, the sum of which must correspond to the normal royalty rate and is determined in conjunction with the Culture Council by the Agency of Cultural Affairs. Compulsory licensing is only available for works that have been:

made public or those for which it is clear that they have been offered to or made available to the public for a considerable period of time. (United States Copyright Office 2015)

Under Japanese legislation it is possible to obtain a compulsory licence for works of a foreign author as long as the work will continue to be exploited within Japan. The terms conditions for diligent search for foreign works are the same as those that apply to domestic works. (Favale et al. 2013)

Korea

Per Article 50 of the Korean Copyright Act users may apply to the Minister of Culture, Sports and Tourism for a compulsory license to allow use of certain types of orphan works. Applicants must demonstrate that they have taken “considerable efforts” to identify the rightsholder or rightsholder’s place of residence and compensation must be paid at market rates, as determined by the Korea Copyright Commission.

Switzerland

The Swiss Copyright Act contains provisions on orphan works which are limited to sound and audio-visual recordings. Art. 22b URG/CopA authorises users to seek authorisation for the exploitation of works from the licensed collective management organisations if the rightsholder cannot be contacted, is unknown or cannot be located. (Suisa Blog)

The Netherlands

The Netherlands implemented the Orphan Works Directive into their national Copyright Act (‘Auteurswet’) in 2014 with the law entitled: Wet van 8 oktober 2014 tot wijziging van de Auteurswet en de Wet op de naburige rechten in verband met de implementatie van de Richtlijn nr. 2012/28/EU inzake bepaalde toegestane gebruikswijzen van verweesde werken (Act of 8 October 2014 amending the Copyright Act and the Related Rights Act
with the implementation of Directive 2012/28 / EU on certain permitted uses of
orphan works) this amended the Dutch Copyright Act and Neighbouring Rights Act (Favale et al 2016). Prior to this the Dutch had no specific orphan works legislation, instead relying on contractual agreements between heritage institutions and rightsholder organisations. (KEA 2011)

A 2011 study by the IViR (Institute for Information Law of Amsterdam University) proposed what it considered two viable solutions to improve rights clearance, 1) a compulsory collective licensing model or 2) an extended collective licensing model. The report concluded that in order to satisfy the need of rights holders to exercise their rights, certain restrictions would be required such as limiting licenses to cultural heritage institutions with a public mission. To ensure film producers don’t suffer unfair competition, from CHIs in the exploitation of their digital rights they suggest the option of granting a license on audio-visual heritage material older than ten years.

USA and the question of Fair Use

In the United States Orphan Works legislation was first introduced in 2008’s Shaun Bentley Orphan Works Act, but the bill never made it into law before congress adjourned. The bill:

would have limited remedies where the infringer had performed and documented a good faith reasonably diligent search before using the work; the infringing use of the work provided attribution to the copyright owner, if known; and the infringing user included an appropriate symbol or notice in association with any public distribution, display, or use of the work. (United States Copyright Office 2015)

The report by the Register of Copyrights proposed an ECL (Extended Collective Licensing) system as the “best answer to solving the mass licensing that is inherent to mass digitization.” The report cites the voluntary agreement between parties in the Google books settlement as evidence that with government support such a system could be made to work:

we believe that with government support and oversight to ensure that any legislation is developed transparently and in a way to benefit a wide array of stakeholders equally, ECL can be successful here. (United States Copyright Office 2015)

The report examines the application of fair-use as an alternative to legislation, noting that representatives of libraries and other groups had argued that legislation on mass digitization was unnecessary since the courts were capable of using fair use doctrine to evaluate projects on a case-by-case basis. However, the report argues that reliance on fair use:

can only go so far in enabling the development of mass digitization [and therefore] should Congress wish to encourage or facilitate mass digitization projects providing substantial access to the expressive contents of copyrighted works, it would need to look beyond fair use to a licensing model, either voluntary or statutory. (United States Copyright Office 2015)

In their study of orphan works legislation Favale et al (2013) analysed the proposed orphan works legislation and claimed that the US approach focused on limiting liability for users of orphan works “in order to maximise the public access to these works and to foster the diffusion of public digital libraries.” They argue that this reflects the market-driven approach to copyright in America and stated that for this reason:

collective management of rights (either “extended” or not) do not find a viable place among the proposed solutions to the orphan works problem in the US.

However, as we have seen above the most recent approach of the US Copyright Office seeks to reconsider a collective rights management approach. In its comment on the proposals for an ECL system the Internet Archive criticised the US Copyright for basing its approach to heavily on Google Books arguing that such a project was a unique occurrence and would most likely not be repeated. They argued that an ECL system as proposed would be unsuited to the current decentralised approach to digitisation in the United States and instead propose strengthening of existing notice and takedown systems already in use such by many digitisation projects including their own.

What is ECL?
ECL (Extended Collective License) is a form of collective rights management agreement negotiated between a user and a third-party collective management organisation, widely used in Nordic countries of Denmark, Sweden, Finland and Norway. Under a collective license an agreement is negotiated made between a user and a representative organisation for the use of works in a particular category. This agreement is given extended effect by including the works in the same category of non-members known as “outsiders”. The CMO is responsible for locating rightsholders and distributing remuneration.

The legislation made it possible for books published in France prior to 1st January 2001 to be digitized if they were no longer commercially available from the publisher and is not available in printed or digital form. This was achieved by granting the collecting society SOFIA the right to authorize the digital reproduction or representation of such books six months after their entry into the ReLire database of out-of-commerce works, maintained by the Bibliothèque National de France. As Franck Macrez notes, orphan works would be included since they would meet the definition of “unavailable book”. Under the Act the collecting society would be required to take appropriate measures to locate and distribute royalties received. It was also to take steps to preserve the interests of rights holders not party to the publishing contract.

The act raised concerns for turning copyright on it’s head, allowing authors to opt out but would have improved the accessibility of unavailable works in cultural heritage institutions particularly as the collective society would have the right to grant publicly accessible libraries remuneration free permission for non-commercial usage of an unavailable work if no rightsholder is traced within 10 years of the date of the first authorisation to exploit. Reappearing rights holders would be able to put an end to such exploitation at any time, if they believe that the digital cause harm to their reputation or honour.

In 2013 the Decree implementing the law was challenged by the writers Sara Doke and Marc Soulier (also known as French Science Fiction writer Yal Ayerdhal) who sough to have it annulled by the Conseil D’etat, on the grounds that the amendments in the Decree represented a limitation to their exclusive right of reproduction provided by Article 2(a) of Directive 2001/29 (the InfoSoc Directive) which was not included in the list of exceptions to this right listed in article 5 of Directive 2001/9. The case was referred to the Conseil Constitutionnel, asking it to rule on the law’s constitutionality. The Council found that the law did not prevent the exploitation of works in other forms than digital and that the plaintiffs’ rights to private property granted under article 17 of the French Declaration of Human Rights and Civic Rights(1789) had not been breached.

Following this the Council of State then sought a ruling from CJEU on the question of whether the decree was incompatible with articles 2 and 5 of the Infosoc Directive. The preliminary ruling of Advocate General Wathelet found that French law was not compatible with the InfoSoc Directive.

The AG found that the French legislation was incompatible on the following grounds:

The Decree does not allow the author to provide their prior express consent for the reproduction and communication to the public of their works, described by the AG as “cornerstone of the author’s exercise of his exclusive right” (Case C‑301/15 n61). Tacit or implied consent deprives the author their essential intellectual property rights.

This is not altered by the fact that the works are distributed non-commercially or that the author has the option to oppose, withdraw the exercise of his rights by the CMO and receive remuneration.

On the question of the influence of the 2011 Memorandum of Understanding on the digitisation and making available of out-of-commerce work (signed by three European library associations, rightsholder organisations, journalists, publishers, authors and artists) the AG argued that the agreement could the scope of exclusive rights set out in Articles 2 (a) and 3(1) of the InfoSoc Directive since the MoU is not a legally binding instrument but a means for ensuring the legal certainty of voluntary agreements negotiated between users, rightholders and collective rights management organisations.

While the decision of the CJEU and the AG did not specifically address the issue of Orphan Works it has implications for the digitisation and making available of orphan works as Andree (2016) argues:

Does that mean that orphan works can never be placed in such a database, since it is impossible to secure the consent of their unknown right holder, or, to the contrary, should Soulier be interpreted as meaning that only orphan books can be placed into the database, since it is not possible to secure the prior consent of their authors, and they are thus out of the scope of the Soulier decision?

Much of the Soulier Doke case hinged on the issue of the authors prior to consent to the use of their work. As Valérie-Laure Benabou (2017) writes in a blog post(French) that the judges stated that:

…the author be “effectively informed of the future use of his work by a third party and the means at his disposal with a view to prohibiting it if he so wishes”. The absence of such effective information deprives the author of any possibility of “taking a stand” on future use, which makes consent purely hypothetical

Sganga (2017) argues that the decision could have potentially far-reaching consequences, Citing the decision’s focus on the requirement of the author to provide express consent for any exercise of exclusive rights would mean:

outlawing the very basic principle on which ECLs operate, that is the possibility to extend the collective licence between CMOs and users to all the works belonging to a definite category, regardless of whether or not the author is a member of the organization.

She notes that CJEU recognised the societal value of exploiting out-of-print books but does not indicate to Member States a solution that would be compliant with EU law. She proceeds to argue that the decision creates more ambiguity and uncertainty around the functioning of Collective Licensing Agreements:

In censoring a commercially oriented law to protect authors without engaging in a more detailed analysis, the CJEU has created further uncertainties, and opened the gate for a potential flow of complaints against national collective management schemes.

However, Benabou (2017) suggests that there is no obstacle in principle to a ‘collective management mechanism’, whereby non-response from an author is considered consent, despite the fact that it appears to be in conflict with the right to prior authorisation. She writes that:

in order not to undermine the very principle of prior authorisation, it is necessary for the author to be individually informed about the terms of the intended use, so that his silence can be regarded as a genuine implicit endorsement of that use. Thus, there is no obstacle in principle to a compulsory collective management mechanism of an exclusive right “by default”, provided that each author has been able to understand the implications of his inaction after being individually notified, which makes the consent purely hypothetical.

Territoriality and the challenge of cross-border dissemination

Once of the main challenges for CHI in disseminating their digital collections is the principle of territoriality, a principle of public international law that limits the extent of protections and exercise of rights to the borders of a sovereign state. Despite efforts made by the EU to harmonise aspects of Copyright through Directive 2001/29/EC (also known as the InfoSoc Directive) Copyright in European Countries is still based upon the principle of territoriality.

Accordingly, there are two legal rules that can be applied in to determine the applicable law for the cross-border dissemination of works in an online environment, the principle of lex loci protectionis & the principle of country of reception. The first, derived from Article 5 of the Berne Convention, stipulates that the law of the state where the work is made available is applied. The principle of the country of reception applies the legislation of the state or country where the work is accessed. In practice, this means that in order to avoid infringement CHIs wishing to disseminate their works, must obtain a license from rights holders for each territory. (Axhamn & Guba 2011; Anderstotter 2017)

The Orphan Works License scheme, is limited by the principle of territoriality in that the license granted is only valid for use in the UK, as the IPO’s guidance states:

An orphan works licence will cover the lawful use of the work in the UK only. It is the responsibility of the organisation or person using the orphan work to ensure that they comply with the law of any other jurisdictions where they may wish to use the work.

The Orphan Works Directive overcomes this by ensuring mutual recognition of a works orphan status in all member states.

Evaluating ECL

The main drawback of an exception such as the one implemented by the EU Orphan Works Directive is the need to clear works on an individual level, through means of a diligent search. This proves to be time and resource intensive for organisations, however once diligence has been completed users are provided with a greater degree of certainty that the work is orphaned or else are able to determine than an ECL (Extended Collective Licensing) solution that forgoes diligence in favour of a payment to a Collective Management Organisation, which takes on responsibility for tracing rightsholders and redistributing fees. As Guibault (2015) writes the cumbersome and limited nature of the Orphan Works Directive has led to many member states to consider ECL:

Compared to standard collective rights management, the “extension” of agreements to non-members of a CMO significantly facilitates the licensing process to the benefit of rights owners and users alike: even if not all rights owners are identified, license agreements can still be concluded and remuneration paid, allowing the use to take place under specific conditions.

The main drawback to ECL as an approach is that many of the works licensed under these schemes are restricted geographically to their country of origin, meaning only the citizens residing within their national territories can access them. For example access to the Norwegian Digital Library (bokhylla.no) is restricted to users based in Norway. (although it states that users “without Norwegian IP addresses can apply for access for specific purposes, primarily research, education and professional translation” for an initial period of six months.See here for details)

Rignalda (2011) lists this amongst other issues which he argues need to be resolved before ECL can be an effective solution to mass rights clearance. On this point he argues that if all countries implemented or adopted ECL, then it would be possible to set up organisations to manage multi-territorial licensing with responsibility for arranging and administering extended collective licences in all Member States. (so-called ‘one-stop shops‘)Axhamn & Guibault (2011) recommend the promotion of multi-territory licensing modelled on the IFPI I Simulcasting Agreement

Compatibility of ECL with International Law

Third, that ECL should conform to international and European copyright law. On this point, he notes that in principle this should not be an issue given that it is recognised within Directive 2001/29/EC. In response to issue of whether the requirements for opting out would constitute a conflict with the prohibition of formalities within the Berne Convention, but argues that it may be possible to make a distinction between the notion of formalities related to the automatic grant of Copyright, as opposed to a formality around the enjoyment of the exclusive nature of copyrights. This he argues would depend on the form taken by an opt out mechanism, citing the difference between a simple notification via email and the need to provide more detailed information.

Axhamn and Gubault (2011a) examine ECL in the context of the Berne Conventions’s three-step test, which requires that all limitations and exceptions introduced by member states should be confined to “certain special cases” (i) that “do not conflict with a normal exploitation of a work” (ii) and “do not unreasonably prejudice the legitimate interests of the author”(iii).(Knights 2001) Since the extended effect of a an ECL Agreement acts a limitation on the exclusive rights of an author there is a risk of it coming into conflict with the three-step test. Their opinion, however, is that the characteristics of the ECL statutory provisions, namely freely negotiated agreements between parties to the agreement, the principles of equal treatment and right to (separate) remuneration and the option for rightsholders to opt out from the agreement, decrease the likelihood of ECL agreements conflicting with the three-step test.

Since most ‘outsiders’, usually foreign authors, are guaranteed remuneration at the same rate as members of the CMO and also in most cases have the choice to opt-out of any collective management agreement in which their works are included, ECL is considered to comply with the principle of equal treatment. (Axham and Guibault, 2011a)

Compatibility with EC/EU Law

Article 5 of Directive 2001/29/EC article contains an ‘exhaustive enumerations of exceptions and limitations to the reproductive right and the right of communication to the public’ (Council Directive 2001/29/EC Recital 32). With the exception of one, the limitations listed in article 5, are optional, allowing member states to choose which ones to implement in their national legislature. All limitations implemented must comply with the text of the Directive and are applied in accordance with the 3-step test.

However, Clause 18 of Directive 2001/29/EC states that:

This Directive is without prejudice to the arrangements in the Member States concerning the management of rights such as extended collective licences.

This implies that ECL agreements are not regarded as exceptions or limitations in the meaning of the Directive and are thus not enumerated under article 5 (Rosén 2011)

Drawbacks of ECL

As several authors. including Rignalda(2011) and Axhamn & Guibault (2011a), note one of the main drawbacks of ECL as a solution, is the cost of licensing. Rignalda cites the cost per book negotiated for Norwegian digitisation projects as averaging €13. Clearly at this rate not scalable/ feasible for entire collections, they explain the reasoning for this as being due to market forces saying:

The essence of this issue is that extended collective management is not a policy instrument. It is not intended to be used by governments to control copyright and achieve certain policy goals. It is merely a facility to support the market, to lower transaction costs, and to resolve market failure.

Rignalda(2011) also references the high cost of administering a system of extended collective licensing as an issue, noting that this applies in particular to the costs incurred by CMOs for locating rightsholders and paying them the licensing fees that they are due. Essentially the advantage of ECL over the Orphan Works Directive, is that it transfers the burden of locating rightsholders to the CMO in exchange for a fixed rate licensing fee. In some instances this may be preferable.

Anderstotter(2017) carried out comparative research into the legislative frameworks for clearing orphan works in UK and Sweden. As part of her research she conducted interviews with Victoria Stobo and Nic Poole and both were asked to give their thoughts on ECL as a means of outsourcing rights clearance. Both commented on the cost with Poole noting he had:

’yet to see a collective licensing scheme that is cheaper than it is to simply deal with the risk.’

He continues by further highlighting pricing as a major barrier to the success of collective licensing, maintaining that:

’the collective licensing always falls down on price. (…) It costs human and organisational resources even if the licence cost is very low. (…) If [a work] has become orphaned it is highly unlikely the cost of collective licensing scheme is going to be proportionate.

Per Anderstotter(2017) Stobo describes ECL as a ‘bureaucratic nightmare‘ claiming

’It’s not well-used, it’s expensive in terms of the time it takes to go through the applications process, and you can’t use it for mass-digitisation. It could perhaps be used for high-risk orphans.

Stobo also raises the fact that the UK does not have a strong tradition of collective management in most sectors, this is a point raised by Rignalda(2011) who notes that while ECL is popular in Nordic countries where the benefits of such a system are widely understood. He believes that there may not as widespread availability of CMOs sufficiently representative to issue license in countries where ECL is not so popular.

On this basis it appears that ECL is not a viable alternative to the problem of mass digitisation for cultural heritage, although it may have a limited use for certain categories of Orphan Works. There is nothing in the Orphan Works Directive to prevent the use of the two solutions side by side, since the directive states it is without prejudice to collective management agreements. However, this still leave both CMOs and CHIs facing high costs for rights clearance. Therefore a solution remains elusive.

Next Steps

During August I launched a survey of UK GLAM institutions asking them about their experiences of the UK licensing scheme and the EU exception. From this I hope to get an understanding of how institutions are using the license scheme / exception and if not what their reasons for not doing so are. I am also planning on conducting some brief interviews with some of the respondents. The survey has been created in Google Forms and distributed through Twitter, email and various Jisc Mail Lists. The questions can be read here and the actual survey can be via this link, just in case you’re reading and are able to contribute 😉

I will post an update once I’ve analysed the responses in detail , but in the meantime here’s a sneak preview.

Knights, Roger (2001) Limitations and Exceptions under the “Three-Step-Test” and in National Legislation–Differences between the Analog and Digital Environments. Regional Workshop on Copyright and Related Rights In The Information Age organized by the World Intellectual Property Organization (WIPO) in cooperation with the Russian Agency for Patents and Trademarks (Rospatent) Moscow, May 22 to 24, 2001 http://www.wipo.int/edocs/mdocs/copyright/en/wipo_cr_mow_01/wipo_cr_mow_01_2.pdf

In my last last post I wrote a brief introduction to my #citylis dissertation, a study of the effectiveness of current orphan works legislation. To recap orphan works are Copyrighted material for which the copyright holder is unknown or unable to be located. The collections of cultural heritage institutions such libraries and archives hold a significant amount of such material. As they are unable to contact the rights holder to gain permission for using this material, institutions have chosen to not digitize these works. This has led to what is known as the 20th century black hole
My dissertation seeks to determine how effective the legislative solutions to orphan works have been in enabling cultural heritage institutions to digitize and make available online the parts of their collections that contain orphan works.

1) Why is it important?

Without, an effective solution much of our global cultural heritage will remain hidden and inaccessible to anyone unable to visit the institutions containing so many of these valuable works. A Collections Trust report(2009) claimed that:

The huge scale and significant impact of Orphan Works, conservatively estimated to be some 25 million items across public sector organisations, has led to a ‘locking up’ of content with little or no prospect of these items ever making a meaningful contribution to a knowledge economy without potentially complex and costly ‘due diligence’ processes.

Baker(2016) claims that the inability to clear the copyright of works whose authors could not be located, has hindered various mass digitization projects including Europeana and Google Books. This is echoed by Van Gompel and Hugenholtz (2010) who state that:

By impeding the clearance of copyright and related rights, the orphan works problem may frustrate entire reutilization projects and prevent culturally- or scientifically-valuable content being used as building blocks for new works

David R Hansen(2017) believes that it is a problem that is worth solving claiming that:

As long as it remains unsolved, a significant fraction of our culture will be hidden or suppressed. The problem is not that we can’t put our hands on the works themselves. Most are sitting on library shelves, just as, conversely, most works sitting on library shelves may be orphans. The problem is that we are not legally allowed to make them more accessible and usable, even when the rightsholders would welcome us to do so.

2) We don’t really know how big a problem it is, but it’s big:

In a 2010 study on orphan works and the costs of rights clearance Vuopala argues that:

The first and fundamental challenge when dealing with the issue of orphan works is to quantify the extent of the problem, i.e. to establish reliable figures on the amount of orphan works within collections of cultural institutions in Europe.

Various studies give estimates about the proportion of orphan works in the collections of cultural heritage institutions. A 2011 rights clearance exercise for the British Library found that 43% of a sample of 140 books published between 1874 and 2010, were orphan works. Meanwhile, a 2009 Collections Trust study meanwhile reported that ‘the average proportion of orphan Works in a collection overall was measured at 5% to 10%’, whilst certain sectors, such as libraries and archives likely to have much higher. Based upon estimates they calculated that the UK museums sector was likely to include holdings of over 25 million orphan works. Furthermore, 26 of the 503 respondents to the survey reported that their collections contained over 1 million orphan works.

When these vast collections are taken into account, analysis to calculate the volume of Orphan Works represented in this survey alone starts to become mind-boggling. Individual estimates suggest that there are single organisations in the survey sample that hold in excess of 7.5 million Orphan Works. (Jisc 2009)

Overall they estimated that 503 UK institutions could hold in excess of 50 million orphan works. Vuopala (2010) argues that:

It is hard to establish reliable figures on the amount of orphan works, because at the moment there is no easy way to establish that a work is orphan. Hence, very little systematic research has been done and hardly any empirical data has been available about problems related to orphan works.

3)Why do works become Orphaned?

There are several reasons why works become orphaned including:

The work has insufficient information to identify the creator copyright holder.

The original copyright holder can no longer be located at the original address and there are no records of a new address

Copyright has been assigned to a new owner

The copyright holder has died or the business has ceased to exist

The copyright owner does not realize that they benefit from copyright

Length of duration of copyright in unpublished text based works in the UK

A major reason why there are so many orphan works is that there is no register of copyrights requiring creators to register their works. This is because copyright is automatic the Berne Convention states that there should be no formalities to the granting of copyright. Article 5(2) of the Berne Convention states that:

The enjoyment and the exercise of these rights shall not be subject to any formality ; such enjoyment and such exercise shall be independent of the existence of protection in the country of origin of the work.

Greenburg (2012) claims the rise in the number of orphan works has resulted from the:

shift away from formalities coupled with the explosion of instant authorship and the expansion in scope and duration of copyright,

As Baker(2017) notes the orphan works problem has led to calls for a system of copyright registration to be reintroduced (until the 1923 Copyrighted works had to be registered with the Stationers Company) however such a suggestion would be impractical in the current age of digital and social media. Any return to a system of copyright registration would create a situation whereby creators such as bloggers, photographers would need to apply for copyright protection for their posts on a daily basis. As Greenburg (2012) argues any return to registration would lead to a situation, whereby due to the costs involved in a formal registration with the Copyright office, a creator such as a blogger would be unable to determine at the point of creation which if their works were likely to be commercially successful or not. Consequently, he argues they would likely not to register any works.

Furthermore, in order to be of value to potential users of orphan works, any such register would need to be updated to record any transfer of intellectual property rights. A voluntary system of registration exists in the United States whereby creators can submit their work for registration with the Copyright office, however, this is optional and does not grant them any additional rights. It does, however, provide a public record of the copyright claim, and is necessary prior to any infringement claims (U.S. Copyright Office 2012).

EDIT someone pointed out to me that under US copyright law, a rights holder can only sue and collect damages for infringement if one they have registered a property for copyright, the right to sue (for damages) is important, especially as a deterrent to use of the work without permission or licensing.

One of the recommendations of the 2009 report on Orphan Works, ‘In from the Cold An assessment of the scope of ‘Orphan Works’ and its impact on the delivery of services to the public’ (Jisc) was the creation of an ‘official national database’ such a database they suggested should be:

…on an ‘opt-in’ basis, so that copyright holders would be responsible for making sure that they put their works into the database if they want to benefit and that, otherwise, organisations could use works as they see fit.

The Gowers’ Review of Intellectual Property (Gov.uk 2006) made a similar recommendation for the establishment of a voluntary register of Copyright, possibly in partnership with existing rights holder databases. However, there is a difference between a voluntary register and a formal register that would require rights holders to opt out if they didn’t wish their work to be used. Such a system would likely be in breach of the Berne convention as it would represent a formality.

N.B. it could be it’s referring to a form of Extended Collective Licensing, but it’s not clear.

4) The length of Copyright is damaging our cultural heritage

As William Patry (2012) argues in How to Fix Copyright one of the main causes of orphan works is the length of Copyright term, as he says:

If you can’t track down who owns rights in the work, you can’t use it no matter how socially beneficial your use may be and no matter how likely it is that the copyright owner has lost all interest in exploiting the work. This was not a problem when
the term of protection was short: those who argued for a longer term of protection selfishly thought only of themselves, not thinking or caring that the longer the term of protection, the greater the loss to society from the inability to create new works based on old works, and an inability to preserve old works. The long term of protection is seriously damaging to our cultural heritage.

When the first act of Copyright, the Statute of Anne was enacted in 1709, it granted authors a protection of 14 years, 21 years for books already in print. At the end of the 14 years if the author was still alive then the copyright was renewed for another 14 years. Over time authors and authors rights societies have sought to lengthen the term of protection afforded by Copyright.

Today the length of Copyright today stands at life +70 (70 years after the death of the author/creator) this means the copyright in most works published today and within the last century won’t expire and enter the public domain for a considerable length of time. This means that for CHIs to digitise them, they will need to track down the creator or current copyright holder. The further away from the date of creation the greater the chance that the work will become orphaned.

Patry (2012) proceeds to claim that there is no orphan works problem, rather a problem with the length of Copyright term, arguing that the longer copyright term makes it harder to use works:

Short of contacting each author about each work, there is no longer a way to determine which works the author desires to protect and which works he, she, or it (in the case of companies) doesn’t wish to protect: All works must be treated as under protection, requiring permission before use.

COMMUNIA, an international association advocating for policies that expand the public domain and increase access to and reuse of culture and knowledge, have called for a reduction in the length of term of Copyright.

Communia policy recommendation calling for reduction of Copyright term

They argue the excessively long duration of copyright protection in combination with a lack of formalities has a detrimental effect on the accessibility of our shared, stating that:

There is no evidence that copyright protection that extends decades beyond the life of the author encourages the production of copyright protected works. Instead the requirement to obtain permission for works by authors that have long died are one of the biggest obstacles for providing universal access to our shared culture and knowledge.

5)It’s all about risk

Perception of risk and tolerance or intolerance to risk is an important factor in the selection of material for digitisation. The greater the tolerance of risk the more materials that are likely to be included in digitisation. The risk may be as much do with concern for reputational damage, as the concerns regarding financial penalties arising from infringement. Well known and prestigious CHIs may be less willing to risk their reputation in digitising material without permission from rights holders. Favale, Schroff, and Bertoni (2017) point to differing approaches to risk amongst institutions dealing with orphan works, stating that:

Most risk-averse institutions do not digitize or do not publish orphan works whereas others take the risk to use the works without clearance. Others try their best to locate the rightholders of these works, to a different extent.

In his report looking into legal strategies for digitising orphan works in the United States Hansen(2017) notes that risk and uncertainty are two of the main reasons why so few of the estimated millions of orphan works in libraries and archives are made available online, saying that:

Librarians, archivists, and others want to digitize orphan works and make them available for free online, but often don’t because of risks associated with legal action and, specifically, copyright infringement actions. If the rightsholder of a work that the digitizer thought was orphaned were to later come forward with a copyright infringement claim, the result could be devastating.

Reputational damage, arising from an act of infringement could impact on the ability to secure participation from rights holders for future digitization projects, as Deazley & Stobo (2013) noted when discussing the Codebreakers digitisation project at the Wellcome library:

Damaging your reputation as a trusted and reliable repository is indeed a serious risk, if you consider that the reputation of the Wellcome Trust and by extension the Library, was important in securing the participation of rights holders in Codebreakers in the first place.

6) Impact:

Where risk/ Copyright is a factor that leads to the exclusion of material from digitisation projects, this creates the possibility of a skewed public digital record. In an age where the primary access to the public record and cultural heritage is online, the exclusion of a category or categories of material could lead to a distortion towards material that requires little or no rights clearance.

As Stobo et al (2017) noted this has several impacts: first, because digital is now the primary means of access for CHI users they may be unaware of what is missing from said digitised collections. Second, research using online materials is skewed on the basis of what is available, this is especially significant for disciplines such as the Digital Humanities that rely on large data-sets for their research. Lastly, if material is not accessible due to copyright, this has implications for access and preservation since preservation may only be prompted when there is a request to use the material. In other words preservation may also be hindered by the inability to facilitate rights clearance for online access.

Rosati (2013) notes the impact of Copyright :

there have been significant instances in which the copyright status of the various works that could be potentially included in digitization projects, along with difficulties arisen in clearing the relevant rights, have either impeded or significantly altered the scope of digitization projects.

7) Part of a larger problem

The orphan works issue can be seen as a symptom or manifestation of the larger issue of how Cultural Heritage Institutions go about clearing rights for digitization projects. Orphan works may comprise only a small percentage of a collection that is being digitized, or it may not be apparent before the start of a project whether works are orphaned or not. Ringnalda (2011) says this in claiming that orphan works issue is:

not the main hurdle on the way to a successful Europeana. Instead, the orphan works problem is only a symptom of a much larger issue: the inability to clear copyrights for the mass digitization and online dissemination of entire library collections.

Meanwhile, Vuopala (2010) notes the cost of clearing rights can amount to far more than the cost of digitizing the material, especially for smaller institutions. while, the cost of digitizing is reduced as projects are scaled up, the more items digitized the cheaper the cost per item, the cost of clearing. Furthermore, the process of rights clearance for large scale digitization projects can be extremely time consuming and laborious, as Ringnalda (2011)argues:

Licensing on an individual scale seems to be too much to ask for. If we have to wait until the copyright owners for all the works in library collections have been found or looked for, we will not see a digital library in the near future, with or without orphan works. Waiting for all those works to pass into the public domain would be more efficient, and probably quicker, too.

While it may be more efficient and quicker to wait for works to pass back into the public domain this does nothing to resolve the issue of the 20th Century Black hole. The question facing legislators has been how to resolve the issue.

Communia Policy recommendation the need for an efficient pan-European solution to the orphan works problem

8) The i2010 Digital Library initiative and the need for a legislative solution

in 2005 the European Commission’s Information Society and Media Directorate published its i2010 digital Libraries initiative, stating the intention of creating a single European digital library providing online access to European cultural heritage. Launched in 2008 Europeana acts as an aggregator for Europe’s digitised cultural heritage and offers direct access to digitised books, audio and film material, photos, paintings, maps, manuscripts, newspapers and archival documents that are part of Europe’s cultural heritage.

The EU has been considering the issue of orphan works since 2006 when it established a High Level Expert Group(HLEG) on Digital Libraries. An interim report “Report on Digital Preservation, Orphan Works and Out-of-Print Works” adopted by the group in 2007 stated that a solution to orphan works was desirable for at least literary and audio-visual works. It proposed that non-legislative solutions to orphan works should include the creation of dedicated databases concerning information on orphan works, improvements to rights holder metadata in digital material, and enhancements to contractual practices, particularly for audiovisual works. The Subgroup also recommended that Member states give appropriate support to contractual arrangements that take into account the role of cultural institutions.

In the UK the Gower’s Review of Intellectual Property (2006) considered the problem of orphan works and made various recommendations on how to resolve the issue, including proposing an ‘orphan works’ provision to the European Commission that would enable creative artists to reuse orphaned material. Anticipating future legislation to resolve the situation, it also recommended that clear guidance be issued by the Patent Office regarding

the parameters of a ‘reasonable search’ for orphan works, in consultation with rights holders, collecting societies, rights owners and archives,when an orphan works exception comes into being.

Lamentably, many of the recommendations made by the Gower’s Review had failed to be implemented by the time of Sir Hargreaves Review of Intellectual Property and Growth (2011) which noted that only 25 of the 54 recommendations made by Gower’s had been implemented. Hargreaves seems to imply that the reason for this was down to the effectiveness of groups acting on behalf of rights holders whose lobbying ‘”has been more persuasive to Ministers than economic impact assessments.”

Hargreaves’ report would also attempt to tackle the issue of orphan works himself suggesting that the creation of a Digital Copyright Exchange, which would facilitate the sale of licenses by rights owners, claiming that automation would speed up and reduce the cost in the process. The will result in:

…a UK market in digital copyright which is better informed and more readily capable of resolving disputes without costly litigation.

The need for a legislative solution to the issue of orphan works is illustrated by Ringnalda(2011) who argues that given that infringement is a criminal offence in many European countries, allowing users to simply start using the works after an unsuccessful attempt to locate the rights holder would not be appropriate. He says:

Inducing public libraries to wilfully violate criminal law by having them use orphaned works without permission would therefore clearly violate public order and policy. Self-regulation cannot suffice. A legal solution is required.

While the i2010 strategy and the Europeana platform that it gave birth form the background to the adoption of the Orphan Works Directive in 2012, Janssens & Tryggvadóttir(2016) note that particular attention to preservation and making available of European cultural heritage, was also driven by Google’s book project, arguing that this was the spur behind the European Digital Library initiative. Rosati (2013) agrees that Google Books settlement encouraged the development of orphan works legislation and wider reforms relating to digitisation of works, citing a 2009 speech by, then Commissioner for Telecoms and Media Digital Europe, Viviane Reding, in which it was claimed that:

lacking a reform of EU rules on orphan works, digitization of works and the development of attractive content offers (including the Google Book Library Project) would not have taken place in Europe.

An 2008 report of the Copyright Subgroup of the HLEG identified four conditions that should be met by potential users of orphan works:

A user wishes to make good faith use of a work with an unclear copyright status;

Due diligence has been performed in trying to identify the rightholders and/or locate them;

The user wishes to use the work in a clearly defined manner;

The user has a duty to seek authority before exploiting the orphan work…

By 2011, when the EU began to consider again the development of a legislative solution to enable the use of orphan works, they considered various options that fit into two categories, the first is based on extended collective licensing (ECL) and the second is modelled on a non-exclusive license. Ringnalda (2011) claims that, of the five options considered by the European Commission four would:

Prescribe modalities of either an exception or a limitation, of a statutory licensing scheme

The fifth and preferred solution as one that allowed member states to devise their own legal technique to enable libraries to make their orphaned works available online, as long as prior permission was given for each work. Any work recognized as orphaned in on member state must be recognized as an orphan in all in order to ensure they are available throughout Europe, a principle is known as mutual recognition. This is necessary to ensure that a user need not comply with the rules of orphan works in 27 member states

Rosati (2013) outlines possible options considered by the Commission, including the adoption:

of a legally binding standalone instrument on the clearance and mutual recognition of orphan works, a specific exception to be added to Directive 2001/29 (the ‘InfoSoc Directive’), or guidance on cross-border mutual recognition of orphan works.

The favored solution was one that allowed member states to devise their own legal technique to enable libraries to make their orphaned works available online, as long as prior permission was given for each work. Any work recognized as orphaned in one member state, fooling a diligent search must be recognized as an orphan in all in order to ensure they are available throughout Europe, a principle is known as mutual recognition. This is necessary to ensure that a user need not comply with the rules of orphan works or conduct a diligent search in 27 member states. As Rosati (2013) argues:

On this basis, it would have been possible to make orphan works available online for cultural and educational purposes without prior authorization, unless (or until) the relevant right holder put an end to the orphan work status.

Besides the options outlined above legislative solutions to the orphan Works problem can include reducing liability for infringement resulting from the use of Works. And limitation of damages that can be claimed by rightsholders. These approaches were included in a proposed Orphan Works Bill which failed to make it through Congress in 2008. (At the Orphan Works Symposium in Bournemouth Prof. Peter Jaszi regaled us with a tragic tale about US attempts to introduce orphan Works legislation)

The eventual approach taken by the European Parliament was the adoption of an Orphan Works Directive on 25th Oct 2012, establishing a new exception to copyright exclusive rights for a number of orphan works. The final text incorporated minor amendments from the initial draft, these included articles 3, which states that a diligent search should be carried out in good faith, 5(1A) which states that a diligent search should be carried out in good faith and only prior to the use of the work, and provisions for the right to fair compensation for reappearing rights holders.

The purpose of the directive was to ensure a legal framework that ensured the lawful cross border online access to orphan works contained within the collections of institutions such as libraries, museums, archives, educational establishments, film heritage and public broadcasters with a public as part of their public interest mission. A directive was necessary to ensure cross border access, reduce transaction costs and facilitate the identification of rightsholders, in doing so it would advance the wider aim of building the knowledge economy. (Rosati 2013)

The eventual directive also restricted the overall scope of coverage, by excluding standalone artworks.

A flawed directive?

Despite the efforts of the EU Parliament to create a directive to enable the widespread digitization of orphan works, there are several flaws that mean it’s impact has been limited. Below I will briefly outline the main issues.

A structural problem?

As outlined above the issue of clearing orphan works is part of the wider problem of clearing the rights of in Copyright works for mass-digitization. All digitization projects that require individual rights clearance of works, face the possibility of high transaction costs that result from both seeking out rights holders and negotiating usage. In many cases rightsholders may request a fee for use of their works.

Conducting the diligent search can be time consuming and costly, not least because as many studies, have, highlighted (Borghi, Favale and Erickson, 2016, Favale, Schroff and Bertoni 2015, Favale, Homberg, Kretschmer, Mendis and Secchi 2013, Ringnalda ) the requirements are either too vague or too onerous, leading to institutions facing. excessive time costs spent trying to meet the requirement, to establish certainty.

Part of the problem is that unlike the UK Licensing Scheme there is no independent body to certify a search as diligent, organisations are left to judge for themselves to determine what constitutes a diligent enough search. Consequently, as Stobo, Patterson and Erickson (2017) highlight many institutions did not view a completed diligent search as sufficient to enable digitisation, relying instead on additional risk assessments. This because as Baker(2016) says:

Though the regulations require that a diligent search be conducted to determine the orphan status of a work, and set out relevant sources to be consulted for each category of relevant work, they fail to specify whether consulting each of the specified sources will automatically guarantee operation of the exception.

A further issue with the directive highlighted by Baker(2016) concerns provisions relating to the reappearance of rightsholders. The regulations state that a reappearing rightsholder may put an end to a works orphan status, by providing evidence of ownership, but fails to make clear what standard of evidence is required or what form it should take form this should take. Furthermore, whilst mutual recognition of a work’s orphan status is guaranteed in the directive, it doesn’t make clear that there is mutual recognition of the termination of a work’s orphan status.

According to Ringnalda (2013) the proposed Directive intended to:

“ameliorate the burden of diligent search efforts by referring to a number of sources that should be consulted before a search is considered to have been sufficiently diligent.”

However, such an approach he argues fits the problem of orphan works but fails to resolve the issue of mass rights clearance.

“It may provide a legal technique that allows orphan works, but if libraries will be required to clear copyrights for each individual work we shall not have to worry about the orphan before their copyrights have already expired”

Stobo, Erickson and Patterson(2017) reported that whilst many institutions such as the BFI, and the British Library have made efforts to engage with the orphan works directive, several others including Wellcome Library, National Portrait Gallery, National Library of Wales, and National Library of Scotland have not made use of either the Orphan works Directive or the UK IPO Orphan Works Licensing scheme, instead relying on their own internal risk management policies.(See also Stobo et al 2013)

Next Steps

In my next post I will look at the proposed diligent search crowdsourcing platform (ENDOW) as a solution to the issues around diligent search. I also aim to report on the survey I am going to conduct of UK cultural heritage institutions to establish how they are approaching the management and use of orphan works in their collections. This research will contribute to an understanding of the effectiveness of the orphan works legislation and help to determine if it has been effective in enabling mass digitization as intended.

References

Baker, K. E. (2016) It’s a hard knock life: a critique of the legislative response to the orphan works problem in the UK. UCL Journal of Law and Jurisprudence DOI: 10.14324/111.2052-1871.061

Janssens M., Tryggvadóttir R. (2016) Orphan works and out-of-commerce works to make the European cultural heritage available: are we there yet?. In The Future of Copyright. A European Union and International Perspective. Stamatoudi I. (eds.) Wolters Kluwer , pp. 189-209

Stobo, V., Patterson, K., Erickson., K. (2017) I should like you to see them some time’: an empirical study of copyright clearance costs in the digitisation of Edwin Morgan’s scrapbooks (Journal of Documentation – forthcoming)

The end of my #citylis journey is nearing. After almost two years I’ve finished all my taught modules, written 8 essays, sat through roughly 240 hours of lectures, attended all sorts of fun events after hours, such as library carpentry, the British Library roadshow, took a trip to a cemetery (because you know Library science?!) and met lots of great people. Of course it’s not really the end, after all #citylis is really for life not just for Christmas, just because you finish the course doesn’t mean you can’t still be involved in #citylis. #citylis is more of a community than a just a course. Also, there’ still the matter of the ‘dreaded’ dissertation to complete, 15-20,000 or so words worth of LIS researchy goodness.

For dissertation topic I ended up landing on a subject that was completely unrelated to my previous ideas. Having spent most of last year thinking of writing about the history of printing, and collecting quite a bit of material to that end, I tossed that idea on the basis that it’s an area that’s already been thoroughly explored. My second choice up until the end of last month was on the concept of libraries in the seventeenth century, I became interested in this after reading about La Bibliotheque Mazarin (see my last blog post).

Then whilst studying the Information Law and Policy module, with the very knowledgeable Paul Pedley I encountered the subject of orphan works.

Little lost Orphans

What are orphan works? I hear you ask. Well the UK Intellectual Property office defines orphan works as:

“creative works or performances that are subject to copyright – like a diary, photograph, film or piece of music – for which one or more of the right holders is either unknown or cannot be found.” (IPO 2016)

Orphan works have proved to be a proverbial spanner in the works for library digitization projects, libraries can’t obtain permission to make use of these works. Any organisation wanting to use these works risk infringing copyright and could face an expensive lawsuit from a reappearing rightsholder.

This is because Copyright grants rights-owners (which may not always be the creator) exclusive rights over the Reproduction, Distribution, Public Performance and Communication to the Public of their work(s).The Intellectual Property Office’s guidance: The rights granted by copyright (IPO 2015) states that Reproduction includes scanning, whilst Communication to the public covers “communication of a work to the public by electronic transmission. This would include broadcasting a work or putting it on the internet.” Since digitization involves both scanning and making a work available online doing so without permission of the rightsholder would result in an infringement of their exclusive rights. As Padfield (2015) states a rightsholders rights are unconditional and can therefore take action against any infringing use, regardless of whether or not they intend to exploit the work themselves, and regardless of whether “the infringement has caused harm or brought any economic benefit to the infringer”

The scale of the problem is revealed in by the British Library, which estimated that around 43% of in-copyright material in its collections were orphans(Stratton 2011), whilst the Imperial War Museum holds 2 million photographs with no identified owner.² The high proportion of orphan works in the collections of cultural heritage institutions has had a major impact on digitization projects research conducted by the University of Glasgow reported that institutions spent an average of 2.58 hours searching for rightsholders in books at a cost of £31 per work. For newspaper and magazine clippings the time spent searching for rightsholders was 1.52 hours at a cost £23 per work. Similarly the British Library estimated that based on a representative sample of 140 books it would take a single researcher more than 1000 years to check the entire collection.(Stratton 2011)

The uncertainty around the use of orphan works has given rise to a phenomenon known as the 20th century black hole, as libraries are unable or unwilling to digitize 20th century material. This phenomenon is illustrated by data from Europeana which found a dramatic fall in the availability of material from the second half of the 20th Century.

The directive provides a Copyright exception to enable and allow cultural heritage institutions(CHIs) to digitize and make available online orphan works in their collections, following a search for rights holders, also know as a diligent search. The exception covers literary, cinematographic and audiovisual works as well as sound recordings, but does not permit the use of standalone artistic works such as photographs, maps and paintings. A key limitation is that the usage must be non-commercial, although institutions are able to make a charge to recover the costs. Furthermore, the exception requires any CHI that uses orphan works to register that work in the EU Orphan Works database, now managed by the European Union Intellectual Property Office (EUIPO). Once a work has been established as an orphan in one member state, it is recognized as an orphan across the whole of the EU.

Orphan Works License scheme

The limited nature of the exception led the UK the Government to introduce a licensing scheme for orphan works. The licensing scheme allows any individual or organisation to purchase a non exclusive license for either commercial or non-commercial usage of orphan works. The cost of license includes an administration fee and ranges from 10p upwards. All prospective licensees must conduct a diligent search for the rights owner as part of the application process and are required to record the details of their search. Details Once a license is granted it lasts for 7 years and the details are recorded in the UK orphan works register. The register includes details of all applications including those that were unsuccessful or withdrawn, but doesn’t give details as to why they were rejected or withdrawn. The license fee is set aside for 8 years as fair compensation in the event of the rights-holder reappearing ,

A comparison of orphan works legislation

UK license scheme

EU Orphan Works Directive

Who is eligible to use it

Anyone

Cultural Heritage Institutions

What works does it apply to?

All Works

Text based works, embedded artistic works, and audio-visual works which have been published or made publicly available by a relevant body.

What uses are covered?

All uses

Making available and reproductions for the purposes of digitization, making available, indexing, cataloguing, preservation or restoration.

Diligent Search

Yes, using guidance and specific forms

Yes, self-certified

Fees

Minimum £20 application fee, plus 10p minimum license fee

None

Rights holder claims coverage

IPO the IPO will pay licence fees

User must pay license fee

Duration

Up to seven years

Until expiration of Copyright or rights holder appears

Coverage

Uk only

EU-wide

Source: Oconnell (2015)

Formulating a research question

Now that I have outlined what orphan works are and why they are a problem I need to talk a little more about what I am actually going research. My intention is to determine how effective is the current orphan works legislation in enabling institutions to use orphan works.

Since the intended aim of the exception was to enable CHIs to digitize and make orphan works in their collection available, I intend to determine whether the legislation has had the desired effect.

Already, I have found evidence that it hasn’t been successful as intended.

My initial research suggests it hasn’t, largely because the burden of the diligent search is to strict or the costs of carrying out searches are still too high. Some authors have argued that the reason for the orphan works problem lies in the length of Copyright which is currently set at 70 years after the death of the ‘author’. Of course with orphan works the problem is that the ‘author’ can’t be located or identified, it can be impossible to determine whether a work is still in Copyright.

Article 3(2) of EU directive states that:

The sources that are appropriate for each category of works or phonogram in question shall be determined by each Member State

The UK Intellectual Property Office provides detailed guidance for the different categories of works on its website, with separate guides covering Film & Sound, Literary Works, and Still Visual Art. Each guide lists the many different sources that CHIs and potential users of orphan works should check as part of the diligent search process.

For literary works alone there is a checklist of 36 sources that should be checked:

Orphan works’ registers

Legal deposits, library catalogues and authority files

Society of Authors

Writers’ Guild of Great Britain

Association of Authors Agents

Publishers Association

WATCH (Writers Artists and their Copyright Holders)

ISBN (International Standard Book Number)

Authors Licensing and Collecting Society

Publishers Licensing Society

Copyright Licensing Agency

Public Lending Right register

Virtual International Authority Files (VIAF)

Credits and other information appearing on the work

FOB (Firms Out of Business) database

Companies House

The provenance of a work (i.e. where the work was found)

General internet searching

Records of literary agents

International Standard Text Code (ISTC)

Copac

Author and book info database

Poetry Library

International Standard Name Identifier (ISNI) database

Books in Print database

Copyright Hub

Academic and scientific databases

Online databases and catalogues

Digitised newspaper archives

Genealogy websites

Wills – searching for family members or connections of the author

Archives

Treasury solicitors

Biographical directories

Author directories online

Other sources identified

Along with the aforementioned guidance the checklists provide detailed and extensive direction for those undertaking the search. Deazley (2017) references the fact that some believe that diligent search is in fact an exhaustive search, in that where a list of sources has been issued it becomes necessary for all those sources to be checked in order for a search to qualify as diligent. However, as he points out the IPO guidelines state that a search should be context specific depending upon the type of work.

One proposed solution to burden of diligent search is proposed by Borghi, Erickson & Favale (2016). After discussing the issue of orphan works and examining the legislative responses, they examine the costs of rights clearance and diligent search that are borne by CHIs seeking to use orphan works. They propose the use of crowdsourcing platform to spread the cost and workload of a diligent search, stating that:

A legally compliant and rigorously designed crowdsourcing solution could reduce risks to cultural institutions and help overcome perceived challenges associated with mass digitization.

Such an initiative, they argue could also enable cultural heritage institutions with little or no experience in rights clearance, to conduct diligent searches of their own, thereby providing them with the potential means to identify and use orphan works in their own collection.

Guided by platform users would be lead to three possible outcomes.

the work is in the public domain;

the work is in-copyright but the rightholders cannot be located:

the work is in-copyright and the rightholders are traceable.

As the authors state, for outcomes 1 and 2 it would be up to the institution to verify the status of the work. In the case of the third the platform will generate a report for the user and the host institution containing information about the rightsholder(s). It would then be up to the institution to contact the rightsholder or their representatives and negotiate a license for use.

Next Steps

Once I have finished my initial literature review, I intend to conduct a survey of libraries and archives on their attitudes towards the current orphan works legislation. I am interested in finding out whether it has impacted on their digitization projects (positively or negatively) and whether as the literature shows the burden of the diligent search is an issue in terms of time and resources. I will also examine the EnDOW (“Enhancing access to 20th Century cultural heritage through Distributed Orphan Works clearance”) project, which builds upon the research about crowdsourcing diligent search. Specifically it states that it

“aims at designing, implementing and testing an efficient and cost-effective system for determining the “orphan work” status of library, archive and museum material, according to the requirements of the recently implemented European Directive on orphan works.” (Diligentsearch.eu., no date)

I will also look at a recent project called Digitising the Edwin Morgan Scrapbooks, which examined the current orphan works legislation, through a “rights clearance simulation on a culturally significant set of unpublished scrapbooks created by Edwin Morgan, the first Scots Makar.” The project which can be found at http://www.digitisingmorgan.org/ concluded that “mass digitisation and diligent search are fundamentally incompatible”, so I will be examining the reasons for that conclusion. Then on 23 June this year Bournemouth University is hosting an International Symposium: New Approaches to the Orphan Works Problem: Technology, Regulation, Practices. This is a free event which will:

“bring together the findings of EnDOW researchers and those of fellow scholars around the world, in order to explore innovative approaches to the problem of orphan works. Technology, legal regulation and best practices will be thoroughly discussed and tested by the participants.”

I’ve booked a place and hope to learn plenty about the EnDOW project and current thinking on Orphan Works legislation. I hope be able to speak to some of the presenters and get their opinion on the initial findings of my research. This will help inform the next stages of my research.

Rosati, E. (2013) The Orphan Works Provisions of the ERR Act: Are They Compatible with UK and EU Laws? European Intellectual Property Review, (Forthcoming.) Available at SSRN: https://ssrn.com/abstract=2323393

Gangjee, D., S. (2016) Copyright Formalities: A Return to Registration?. In R Giblin and K Weatherall (eds), What if We Could Reimagine Copyright? (ANU Press, 2017) 213.. Available at SSRN: https://ssrn.com/abstract=2923897

Hudson, E. & Kenyon, A. T., (2007). Melbourne Law School Without Walls: Copyright Law and Digital Collections in Australian Cultural Institutions Without Walls: Copyright Law and Digital Collections in Australian Cultural Institutions. 4(2).

Hugenholtz, B.,(2013). Is Harmonization a Good Thing? The Case of the Copyright Acquis. In: J. Ohly, Ansgar; Pila, ed. The Europeanization of Intellectual Property LawTowards a European Legal Methodology. Oxford: Oxford University Press 2013., pp. 57-73.

Intellectual Property Office, (2014) Government response to the technical consultation on orphan works.

As an undergraduate I studied history and developed an interest, some might say an obsession, in the French King Louis XIV, also known as the Le Roi Soleil or The Sun King, as a result of his carefully managed image. Louis’s reign was the longest of any European monarch, lasting 72 years and was the high watermark for the style of monarchy known as absolutism. It was the notion of Louis’s absolute monarchy, which triggered my interest and which saw my first essay on the Sun King discussing Louis’ proclamation “L’état c’est moi“(I am the state/the state is me). As it turns out this proclamation was apocryphal and Louis’s absolute monarchy was not all-powerful as nineteenth century scholars led us to believe. As Parker says:

It is highly arguable that absolute power really rested on a compromise with the families and groups who controlled the key institutions of central and provincial France. In return for the latter’s political conformity the monarchy sustained their material interests through a system of patronage from which both parties benefited.¹

Louis’s first minister Cardinal Mazarin was the owner of a great library, known as the Bibliothèque Mazarin, is today France’s oldest public library. The library was run by Gabriel Naudé, writer of the first modern treatise. In this blog I will delve into the history of Mazarin, his library, and his Librarian Naudé.

Giulio Raimondo Mazarini, an Italian by birth, was born in Pescine, Aquila in 1602, and would study at Jesuit School in Rome. Having served as a captain in the papal army from 1624, before becoming a papal nuncio in Paris between 1632 and 1636. It was during this time that he attracted the attention of Cardinal Richelieu, chief minister to French King Louis XIII, who took him under his wing. Having become a naturalised Frenchman in 1639, Mazarin’s service to France was recognised and rewarded with the granting of a Cardinal’s hat in 1641. Two years later following the deaths of Richelieu (1642) and Louis XIII(1643) he was chosen by Anne of Austria, the Queen Regent, to be first minister.

The Fronde and exile

As first minister Mazarin continued many of Richelieu’s policies, which proved unpopular with the nobles and judiciary. They resented him for impeding their access to the royal government, through restrictions on the sales of offices of state, which were traditionally a source of income for many nobles. Many were also suspicious of him, due to his Italian birth. Printed pamphlets, known as Mazarinades circulated, attacking the Cardinal, accusing him of jumping into bed with the Queen or being homosexual.

Folger call number DC124.M2925 var. Cage. A Mazarinade from 1651. The title roughly translates as “Unfortunate Prosperity, or the short history of Cardinal Mazarin, in which is set forth all the ruses and all the trickery that he used to achieve his prodigious fortune, with a relation of all the causes of his disgrace.“

Between 1648 and 1653 France was embroiled in a period of unrest and civil war known as the Fronde. On one side was Mazarin and the monarch, on the other the parlements, the noblesse d’robe. Initially Mazarin agreed to make concessions to avoiding a head on confrontation. However, when he and Anne arrested several deputies, including the popular figure Pierre Broussel, rioting broke out and a mob barricaded the streets of Paris, an event know as the journées de barricades (day of the barricades). Anne, Mazarin and young Louis XIV were forced to leave the city and raise troops to retake the city. With the end of the Thirty Years’ War, marked with the Peace of Westphalia, the Royal army was deployed to put down the Frondeurs. In March 1649 the Peace of St Germain was agreed bringing an end to what became known as the Fronde Parlementaire.

Many frondeurs such as Gondi were unhappy with the peace, and a second period of civil war known as the Fronde des nobles ensued from 1650-1653. During the ensuing conflict Mazarin, fearing reprisals from the parlement was forced to flee the country, when the frondeurs allied with the forces of the Prince Condé. Whilst in exile Mazarin was able to sway the great General Turenne, whose forces were then arrayed against Condé’s. By September 1651 Louis had reached the age of his majority, following his thirteenth birthday and Mazarin was recalled to France.

A second brief exile occurred before a triumphant Louis reentered Paris in October 1652, with Mazarin following in February 1653. Mazarin continued to serve Louis until his death in 1661, by which time he had:

“…negotiated lasting peace treaties with both the Holy Roman Empire and Spain (securing valuable territorial and dynastic rights in the process), preserved the “absolutist” innovations of Richelieu and Louis XIII, and trained those who would direct the century’s most spectacular reign, including Jean-Baptiste Colbert, Michel L Tellier, and even Louis XIV himself.“²

Les bibliothèques de Mazarin

Mazarin owned three libraries during his lifetime, the first one was established in Rome before he moved to France in 1639. Following his move to Paris he tasked his librarian Gabriel Naudé with establishing a second considerably larger library, which was dispersed during the Fronde in 1652. Lastly, the library which was reassembled on his return from exile in 1653 and which today forms the core of the current Bibliothèque Mazarine, following the instructions of Mazarin’s will.³

Mazarin’s new Library was to be located within L’Hôtel Chevry-Tubeuf, situated close to the Palais Royal, where Anne of Austria and the young Louis XIV resided. Mazarin set about extending and refurbishing the building, including two galleries by François Mansart to house his art collections, constructed between 1642 and 1644 (today they form the Galleries Mansart and Mazarine of the Bibliothèque National de France). Between 1646 and 1648 a new wing of the Palais Mazarin was constructed by Pierre Le Muet and Maurizio Valperga along the Rue Richelieu. Contemporary accounts show that this wing was about 190 toises (144 meters) long, with the lower floor comprising stables and the upper floor containing a library and living quarters.4

The Palais Mazarin with the library wing from the Plan de Paris par Bullet et Blondell 1676

French historian Henri Sauval (1621 – 76) provided a description written around 1655, but not published until after Mazarin’s death:

“This illustrious library is in a gallery of about thirty toises, about four and a half in breadth, covered with a vault of more than five, lighted by eight windows, and surrounded by two shelf arrangements. The first are full of books in-quarto and folio, and, moreover, are accompanied by a large desk breast high prevailing all around; and fifty Corinthian columns of wood, tall strong, and worked with the cleanliness. The balusters are placed above, where one goes up by four staircases practiced, and hidden in the four corners of the first shelves. This second ordinance occupies all the space which, from the first, goes as far as the birth of the vault, and is destined for the volumes, both in octavo and for the other little books; and for further enrichment and convenience, a small gallery the stone worn on the cornice and entablature Corinthian columns and closed with a painted iron baluster breast high.”5

Yann Sordet current director of the Bibliothèuqe Mazarin argues that the Mazarin’s new library was significant for several reasons, that it was the first library in France to housed in a purpose-built wing and that it was also:

The first library in France to be designed as a gallery: a rectilinear space, not segmented by desks, pulpits or cupboards, in which the books were not only pushed to the periphery, but also lined the walls from floor to ceiling. It was a functional, modern library, with as its sole decoration the mass of books and the shelving structures.6

Piquard provides more details about the design and construction saying that:

It was a matter of building along the Rue de Richelieu, on the edge of the Mazarin Palace, a long gallery in which the books would be placed On shelves fixed to the wall, while the middle of the room would be used to welcome the readers. The work was completed and the books in place at the end of 1649.7

He then quotes the principles set forth by Naudé in his Advis which recommends that the library should be built:

“In middle aisles so that the dampness of the earth does not produce the remorse which is a certain rot that attaches itself Insensibly to books “8

Naudé also talks about the importance of a well-lit library:

“But all these difficulties and circumstances are nothing to those which are to be observed for the giving light, and conveniently placing the windows of a Library, as well for being of great importance, that it be fully illuminated to the very farthest corners, as in respect likewise of the several natures of the winds which ordinarily blow, & which produce effects as different as are their qualities and the places through which they pass ; … “9

Naudé also made several recommendations concerning the interior design, which Le Muet would have followed:

Much less ought one to employ so much gold on the ceiling, Ivory and glass upon the Walls, the Cedar Shelves, and Marble Floor, seeing as this is not now in use; nor do they now place their Books upon Desks, as the antients did; but upon Shelves that hide all the Walls ; but in lieu of such gildings and adornings, one may supply it Mathematical Instruments, Globes, Mapps, Spheres, Pictures, Animals, Stones and other curiosities as well Artificial as Natural, which are ordinarily collected from time to time. 10

We have some idea of how the library looked based on architectural drawings discovered by Knud Bøgh, among the collections of the Royal Library of Denmark. The drawings are thought to have been made on the occasion of a visit by the future Christian V of Denmark, who stayed in Paris from December 1662 to May 1663. They are likely to have influenced the design of Frederick III’s Royal Library which began construction in 1665.

Architectural drawings of the gallery of the Bibliothèque Mazarin 1662-4 (Royal Library of Denmark)

In terms of decoration the Library was said to have featured varnished woodwork, probably the work of carpenter Pierre Dionys and inspired by the Roman libraries of Borromini.

The library was completed in 1653, but in 1668 was removed to its current site within the Palais de l’Institut de France, on Quai de Conti opposite the Louvre, in execution of the Cardinal’s will. This new library occupied a wing of the newly formed Collège des Quatre-Nations was created as a device by Mazarin to ensure his collection was not dispersed after his death as it had been during the Fronde. As Sordet points out, Mazarin:

Sparing himself the trouble of drawing up a deed of conveyance, he created an institution from scratch, which would perpetuate his person in the form of a college. The act of ‘foundation’ – as defined by canon law, allocating a mass of goods or assets to a perpetual service – consisted in forming a corporate body (a college) to receive it. It took over ten years for this idea to come to fruition: Mazarin first brushed aside Naudé’s proposal to entrust his library to the University of Paris (1649), he then preferred the King’s protection (1650); but his last will and testament (1661) brought the university back into the loop, as it were, because, as the library was attributed to a college, it automatically came under the University’s supervision.11

In 1668, seven years after Mazarin’s death, Mazarin’s library, with the exception of his collection of manuscripts which were taken by Colbert for the Bibliothèque du Roi, moved to the new site. The new library designed by Louis Le Vau, opened to the public in 1691, took the form of two galleries intersecting at right angles, rather than a single gallery. All the fittings, including columns from the previous library in the rue Richelieu, columns, pedestals, capitals, shelves and wood panelling, were transported and fitted into the new library.

Bibliothèque Mazarine

Gabriel Naudé

Gabriel Naudé. Line engraving by C. Mellan, 1765, after himself – CC BY 4.0 Wellcome Images

The size of Mazarin’s library at the time of his death was recorded in an inventory drawn up in 1661-2 by the executors of his will , totaled around 29,200 which included 2400 manuscripts and 26,800 printed books. This was smaller than the first Parisian Library that he had amassed before it was dispersed in the Fronde and which was though to total between 40,000 and 56,000.

The man entrusted with the position of Librarian to Mazarin’s new library was Gabriel Naudé, who was appointed in 1642. As Clarke says:

“One of this new minister’s first acts was to offer Gabriel Naudé a position as librarian in his household at a salary of 200 livres a year. He wished, Mazarin said, to build a library that would rank from its very beginning among the richest and most complete in Europe.”12

Born in Paris 1600, Naudé was well educated and was an avid reader of authors classic and modern. Having attended several colleges, and receiving the title master of arts he enrolled in the University of Paris to study medicine. Despite being named royal physician to Louis XIII in 1632 Naudé never practised medicine, perhaps for the because:

In the first half of the seventeenth century the practice of medicine centred in scholarly libraries and botanical gardens, not in hospitals or laboratories. It is hardly surprising, therefore, that although physicians trained at Paris were often learned men, their scientific ideas were rooted in the past. Understandably, the more intelligent among them escaped from medical practice into literature, philosophy, or the natural sciences.13

In 1620 published Naudé Le Marfore, ou Discours contre les libellés, his first book, at his own expense and it would be his writings that brought him to the attention of President Henri de Mesme, offering Naudé position of librarian.The library of de Mesmes was contain 8,000 printed books including many classics from the Aldine Press and was

…the venerable collection of one of the better established robe families in Paris. Particularly in the last half of the sixteenth century, the Hotel de Mesmes and its library had been at the centre of learned parlement culture. More than this, the de Mesmes library was one of a handful of robe libraries, the de Thou library among them, whose status as the private professional collections of public persons granted them, as sites of public scholarship and loci of Gallican and constitutional research, a quasi-public status in the Parisian intellectual community.14

Instructions for erecting a Library

In 1627 Naudé wrote his famous Advis pour dresser une bibliothèque, in which he laid out his vision of the universal library. Addressed to “Monseigneur le President de Mesme” Naudé’s Advis is considered the first modern treatise on Librarianship. It consisted of nine chapters or poincts as Naudé called them:

One must be curious to set up libraries, and why.

How to learn and to know how to draw up a library.

The number of books which are required.

Of what quality and condition they ought to be.

By what expedients they may be acquired.

The disposition of the place where they should be kept.

The order which it is required to assign them.

Of the ornament and decoration necessary to be observed.

What should be the main purpose of the library.

Naudé’s stated reason for writing his Advis was a lack of suitable guidance on the selection of books, but he clearly had a particular vision of what a Library should be. In his Advis he appealed to De Mesmes’ sense of honour :

“And therefore, my Lord, it seems very much to the purpose, since you govern and preside in all signal Actions, that you never content yourself with a Mediocrity in things which are good and laudable; and since you have nothing of mean and vulgar, that you should also cherish, above all others, the honour and reputation of possessing a Bibliothèque, the most perfect, the best furnish’d and maintain’d of your time.”15

Naudé’s Advis was significant in that it advocated a move from collecting books for their material features, rich bindings and illustrations to a more reasoned consideration of their scholarly value. Unlike his contemporaries, such as Claude Clement, Thomas Bacon and Bodley, Naudé promoted what he considered a universal library:

a Library which is erected for the publick beneﬁt ought to be universal, but which it can never be, unlesse it comprehend all the principal Authors that have written upon the great diversity of particular Subjects”16

A public library

As we see Naudé’s vision for a universal library also involved making it available to the public. Influenced by his experience of private libraries Naudé believed that the value of the library would benefit the public and that citizens should have access to as much information as possible. This was a radical idea since, as Lars Qvortrup say, at that time of writing it was widely believed that possession of knowledge was dangerous and should be limited to an educated few. Up until the 17th century libraries were mostly private institutions which sought to restrict access to books rather than promote. Naudé however subscribed to the Baconian theory that education of the human mind could transform society and that liberal public access to a well-stocked and organized library supported this. As Rovelstad states:

“Naudé’s user was everyone who may reap any profit from the library’s collection.”17

Naudé was able to convince de Mesme that creating and opening a great library to the public would bring him unique prestige and lasting fame:

“we first deduce, & explain the reasons which are most likely to perswade You, that it is to Your advantage, and that You ought by no means to neglect it. For not to go far from the nature of this Enterprise, common sence will informe us, that it is a thing altogether laudable, generous, and worthy of a courage which breathes nothing but Immortality, to draw out of oblivion, conferve, & erect (like another Pompey] all these Images, not of the Bodies, but of the Minds of so many gallant men, as have neither spared their time, nor their Industry, to transmit to us the most lively features and representations of whatsoever was most excellent & conspicuous in them.”18

The contents of the library

In his Advis Naudé makes many recommendations for the types of books that should be included in a library. For example he recommends buying not only works in their original language, but also their translations and commentaries:

“I Will now say notwithstanding, […] to omit nothing which may serve us for a guide, in this disquisition, that the prime rule which one ought to observe, is, in the first place to furnish a Library with all the chief and principal Authors, as well antient as modern, chosen of the best Edi­tions, in gross, or in parcels, and accompa­nied with their most learned, and best In­terpreters, and commentators, which are to be found in every facultie; not forget­ing those which are lesse vulgar, and by consequent more curious.”16

Naudé was opposed to censorship of religious works and was in favor of the inclusion of controversial and heretical works in a collection. He believed that a good library must include works on all subjects and that scholars should be free to read these works because their contents and arguments had to be known in order to be refuted. As Paul Nelles states Naudé’s Advis signifies:

“a shift in contemporary experience of the library. It initiated a methodological discussion which supplanted the dominant bibliographical conception of the library as a static repository of existing knowledge with a recognition of the library as an institution actively engaged in the production of new knowledge. The Advis bears witness to the ongoing early modern redefinition of the central purpose of the library from one of determining the authority texts to one of evaluating the validity of sources.”20

Naudé would take a break from his work in theBibliotheque Memmiana to return to his medical studies. Around 1629 Guido de Bagni, the Vatican ambassador in Paris returned to Italy, and asked Naudé to join him as his librarian. He served Cardinal Bagni and then Cardinal Barbarini until 1642, when he was recalled to Paris to enter the employ of Cardinal Richelieu, who had been planning a royal library and invited Naudé to return to his native city. However, with the death of Richelieu, Naude came into the employ of the newly risen Cardinal Mazarin, who as we know was embarking on the creation of his first Parisian library. As Lemke says of their partnership:

“…there is little doubt that the right patron and the right bookman had come together and that neither Mazarin nor Naudé could have accomplished singly what they achieved in the next years together. Theirs was a genuine interest in learning, and Naudé, the implementor of their passion, was not dogmatic. Instead, he had come to the job with an open mind, a broad education, and a great joy of vocation.”21

With his new position Naudé now had the opportunity to put into practice the principles he had set out in his Advis. Naudé set about assembling the collection for the Bibliothèque Mazarin which was estimated to contain between 40,000 and 56,000 items at the time of its dispersal. Naudé set about amassing the collection through bulk acquisition of books and whole libraries, a method set out in his Advis. Clarke says that Naudé:

“…saw at once that the most practical method of acquiring books rapidly and in large numbers lay in block purchases by weight without regard for their condition or for duplicates. He knew that he must watch for large private collections to appear on the market and that he must also haunt the Parisian bookstores for suitable volumes.”22

To this end in 1643, Naudé acquired the collection of the late scholar from Limoges Jean Descordes, to form the basis of the Bibliothèque Mazarin. It consisted of 6,000 to 7,000 items including 1,700 volumes in folio, 2,000 in quarto, and 3,000 or 4,000 in octavo. Naudé was not restricted to buying books locally, having exhausted the bookshops of Paris, he travelled to Flanders, then Italy, Germany, and England. His friend Gian Vittorio Rossi, described his methods in a letter to Cardinal Chigi:

“Having purchased every last one of the books dealing in any language whatever with any subject or division of knowledge no matter what, he left the stores stripped and bare. Sometimes, it seemed as if he had come to these shops not as a buyer of books, but to ascertain the size of the walls for he measures with a rule all the books and shelves to the very roof, and names his figure on the basis of that measurement… [the seller]would wrangle, but in the end it is he [Naudé] who by insisting, by bullying, by blustering, and finally by sheer gall, gets his way so that he carries off the very best volumes cheaper than if they were pears or lemons, while the merchant, reflecting on this transaction, complains later that a spell was cast over his eyes and his hand forced, because he could have gotten a far better price for these books from the spice merchants for wrapping incense or pepper, or from the grocers for wrapping up butter or fish in sauce, and other pickled items.”23

In his Advis Naudé also suggested other means of acquiring book such as making the library known in order to attract gift, working with antiquarian book dealers, and consulting library and bookseller catalogues. He maintained an extensive network of contacts of scholars and friends, who were said to be alerted to donate and/or purchase new books for the Mazarin Library.

The order of books

Having acquired the books for Mazarin’s library, Naudé had to ensure they were arranged appropriately on the shelves. According to Paul Nelles, Naudé’s Advis:

“confronted the most pressing dilemma facing the universalization of the library in this period: the need to establish a nonhierarchical classification of knowledge that avoided the charge of arbitrariness but which could yet claim to accurately serve all disciplines of knowledge and provide a stable basis for investigation”21

Naudé would devote a whole section of his Advis to the arrangement of books titling the seventh Poinct or Chapter L’ordre qu’il conuient leur donner (The order which it is requisite to assign them.) He set out the importance of organising the Library saying:

“…for without this, doubtless, all inquiring is to no purpose, and our labour fruitless; feeling books are for no other reason laid and reserved in this place, but that they may be serviceable upon such occasions as present themselves; Which thing is not withstanding impossible to effect, unless they be ranged, and disposed according to the variety of their subjects, or in such other sort, as they may be easily be found, as soon as named. I affirm, moreover that without this Order and disposition, be the collection of books whatever, were it of fifty thousand volumes, it would no more merit the name of a Library than an assembly of thirty thousand men the name of an Army, unless they be martially in their several quarters, under the conduct of their Chiefs and Captains; or a vast heap of stones and materials, that of a Palace or house.”22

Naudé propsed a classification scheme for subject arrangement that mirrored the University Curricula and which he said were familiar mostly to readers:

“I conceive that to be alwayes the best which is most facil, the least intricate, most natural, practised, and which follows the Faculties of Theologie, Physick, Iuris∣prudence, Mathematicks, Humanity, and others, which should be subdivided each of them into particulars, according to their several members, which for this purpose ought to be reasonably well understood by him who has the charge of the Library.”23

He further established that arrangement would aid discovery saying that:

“…fourth & last, that all Books of like argument & subject be precisely reduced, and disciplin’d in their destin’d places; since in so doing, the memory is so refreshed, that it would be easie in a moment onely to find out whatever Book one would choose or desire, in a Library that were as vast as that of Ptolomy.”24

He was critical of alphabetical and symbolic classification schemes of libraries like the Ambrosiana and other libraries that arrange their books ‘pellmejle’ only to be located alphabetically in an author catalogue. Instead Naudé proposed two catalogues one arranged by author and one by subject:

“After all which it shall be very requisite to make two Catalogues of all the Books contained in the Library, in one whereof they should be so precisely dis- pos’d according to their several Matters and Faculties, that one may fee & know in the twinkling of an eye, all the Authors which do meet there upon thefirst subject that shall come into ones head ; and in the other, they fhould be faithfully ranged and reduced under an Alphabetical order of their Authours, as well to avoid the buying of them twice, as to know what are wanting, & satisfie.”25

To accomplish this Naudé recommends the employment of a Librarian, with experience of books to provide assistance to the readers and maintain the library. This man must be a learned and honourable person, who would add prestige to the library and be given an appropriate salary, along with the rank and title of librarian, in order to acknowledge his social standing.

The composition of the Library

We know from various accounts, including Naudé himself, that the first Library of Mazarin contained at least 40,000 items, which were amassed over a period of ten years as a result of Naudé’s efforts. We know from Naudé’s account of the surrender of the library that its rich and varied holdings included:

“Civil law philosophy in folio and books of theology in quarto…Medicine, chemistry and natural history in volumes of all sizes…Around two hundred Bibles in all languages, Greek, Hebrew and other oriental tongues, Latin, French, Italian, Spanish. German, Flemish, English, Dutch, Polish, Hungarian, Swedish, Finnish, Welsh, Hibernian and Rutenian and commentaries on the Bible in volumes of all sizes.”26

Naudé collected books in many different languages including Hebrew, Syriac, Samaritan, Ethiopian, Arabic, Greek, Spanish, Provencal, Italian and Latin. We also know that he advocated the inclusion of heretical texts and he lists books:

“in all languages including Lutheran, Calvinistic, Socinian and other heretical books in all languages, with many Hebrew, Syriac, Arabian , Ethiopian, and Oriental books of all sorts.”27

Later on he describes books on the history of many nations and other subjects:

“All the history, ecclesiastic and profane, universal and special, of every nation” and claims that “Italians, Germans, Spaniards, Englishmen, Polonians, Dutch, and other nations, found here the histories of their own nations, far more rich and better furnished than they could find in their several native countries…Books on mathematics to the number of thirty-five hundred volumes, the Fathers, Scholastics, controversies, sermons, books of the Louvre press and almost all of the humanities.” Lastly, “many large volumes of charts, prints, travels, voyages, tariffs, etc.”28

Once the Library was completed Mazarin instructed Naudé to:

“throw open the library doors to “every living soul” and to provide his readers “with all the books they desire in any language or on any subject.”29

And by 30 January 1644 the Gazette de France was reporting that Mazarin’s palace had been transformed into:

“an academy for all the learned and curious, who flock there on Thursdays, from mo rning till night in order to peruse his beautiful library.”30

Mazarin Library opened to the public with great fanfare. Clarke quotes that day’s Paris Gazette which reported that Mazarin:

“Welcomed in his library all learned and curious people every Thursday from morning to evening to “feuilleter”, literally “leaf through”, his rich collection.”whilst Naudé is described as the most”thoughtful, wise and hardworking librarian and scholar”, who possesses “perfect” knowledge of books. His library was soon called “without flattery, ‘une bibliotheque vivante’ “-a living, lively library.”31

Naudé, keen to let the patrons of his Library come and go with ease, persuaded Mazarin to install a second entrance to the Library, above which was to be placed the following inscription:

“In the prosperous reign of LouisXIV during the wise regency of Anne of Austria, most august mater castrorum, Julius Mazarin, Cardinal of the Holy Roman Church, a minister most pleasing to both councils, in his own good will wishing this library, so rich in books of all languages, arts, and sciences, to be an honour to the city, an ornament to France, and a promoter of knowledge, determined that it should be open to the public and, consecrating it as a gift, endowed it with permanent wealth and commended it to posterity”.32

Naudé and the Fronde

Naudé continued to serve Mazarin during the Fronde. When Mazarin was forced into exile, Naudé remained and in addition to fulfilling his duties as Librarian, took up the role of defender of the Cardinal. In September 1649 Naudé published his response to the attacks on the Cardinal made in mazarinades, Judgement of all that has been written against Cardinal Mazarin or La Mascurat as it was more commonly known. Rather than a direct defense of the Cardinal, La Mascurat takes the form of a dialogue between two characters St Ange, Librarie, and Muscarat, imprimeur, in which Naudé is St Ange and Mascurat is the Paris printer R. Camusat.33

On 14 February 1651, a few days after Mazarin’s exile, Naude was forced to surrender the keys of the Library to Monsieur Tubeuf Presidentof the Chambre des Comptes. Tubeuf had taken possession of the Palais Mazarin, as surety for a debt, owed him by Mazarin, but also in the hopes of saving the library. In his Remise de la bibliotheque de Monseigneur le Cardinal Mazarin par le Sieur de Naude entre les mains de Monsieur Tubeuf, Naude describes the sad scene in which he leads Monsieur Tubeuf from room to room, showing him each part of the library before surrendering the keys. He says:

“And having implored the said Sieur Tubeuf to use the utmost care to prevent as far as possible the dissipation of this the most beautiful, the best and the largest library which had ever been brought together in the world, containing, to my own knowledge, more than forty thousand volumes, of which more than twelve thousand were in folio, I withdrew, with tears in my eyes at the thought that the public was on the eve of being deprived of so great a treasure, and that the noble intentions of His Eminence were being so ill repaid..” 34

When the Parlement proposed to sell Mazarin’s Library, Naudé attempted , in vain, to avert disaster by proclaiming that the Mazarin intended to give the library to the public and saying:

Believe, if you please, that the ruin of this library will be more carefully marked in all histories and calendars, than the taking and sacking of Constantinople.35

Sadly, Naudé’s appeals and other attempts to save the library were in vain and the library was auctioned off. Mazarin’s enemies deliberately chose to sell it off in small discrete lots, to prevent the Cardinal from regaining possession. In 1652 having had to stand by impotently as his life’s work was rendered asunder, Naudé left France for Sweden to serve as Librarian to Queen Christina. The only part of the BibliothèqueMazarin which Naudé was able to save were the medical books which he personally bought at auction.

When Mazarin returned in 1653, one of his first thoughts was for his Library. He set about reconstructing the great collection of books that had been lost during the Fronde and Naudé was recalled from Sweden. Sadly Naudé died in Abbeville, 29 July 1653 before he could reach Paris.

The Mazarin Bible [Biblia latina]. Genèse-Psaumes. – [Mayence] : [Johannes Gutenberg et Johannes Fust], [c. 1455]. – In-folio. – 1er volume.Naudé was succeeded by François de La Poterie, who aided Mazarin in his efforts to reclaim what he could of his library, but as we know the library that Mazarin left to the newly formed Collège des Quatre-Nations, was substantially smaller than before the Fronde. The reformed library reopened to the public again in 1689 and remained open during the revolution even while the Collège was closed.

Naudé and Mazarin bibliographic legacy can still be seen today in the Bibliothèque Mazarine located at Quai Conti and its digital surrogate the Mazarinium digital library. Its manuscript collection was rebuild during the revoloution through the efforts of the Librarian Abbé Gaspard Michel, known as Leblond. Since 1945 it has been under the administrative authority of the Institut de France, which took over the buildings of the Collège.

Its collection have continued to grow and today contains roughly 600,000 items. Its collections include an exceptional heritage library, that comprises around 80,000 printed volumes prior to 1800, including 2,400 incunabula, 4600 manuscripts, a collection of works and works of art.35 Included amongst the collections is a Guttenburg Bible, also known as the Mazarin Bible holds the distinction of being the first copy discovered around 1760 in the library of Cardinal Mazarin.

Naudé’s ideas as expressed in his Advis represent the early origins of modern librarianship, representing a break with the religious orientation of libraries of the past. They represent an expression of an idea, that is resonant today, knowledge as a public good.

Nelles, Paul (1997)The Library as an Instrument of Discovery: Gabrielle Naude and the Uses of Historyin Kelley, D.R., (1997) History and the disciplines: the reclassification of knowledge in early modern Europe, University of Rochester Press, Woodbridge, Suffolk;Rochester, N.Y.

Nelles, Paul (1997)The Library as an Instrument of Discovery: Gabrielle Naude and the Uses of Historyin Kelley, D.R., (1997) History and the disciplines: the reclassification of knowledge in early modern Europe, University of Rochester Press, Woodbridge, Suffolk; Rochester, N.Y.

UPDATE 29/11/2016 – Dr Lyn Robinson has kindly cross-posted this piece to documentingperformane.com and provided a great introduction to the concepts of Documentation and what we mean by documents, please make sure you check it out here.

On 31st October #citylis hosted an fascinating event called The Future of Documents: Documenting Performance the one day interdisciplinary symposium was intended to “bring together scholars, researchers, artists and practitioners from the disciplines of library & information science and theatre & performance, to share and consider respective conceptual views of documents, and the processes and procedures associated with documentation“1

The event was ‘sold out‘ with attendees from a wide range of performance organisations as well as library and information scientists and a contingent of interested #citylis students, including myself, in the capacity of both technical support and attendee.

The event was organised by Dr Lyn Robinson and Joseph Dunne of Rose Bruford College, born out their mutual interest in the documentation of participatory experience, performance and partially-immersive, or complex documents, described by Robinson as:

“provide the reader (player, participant, viewer) with a compelling and realistic world, but one which is delineated to varying extents from actual reality. The reader knows that they, and the document with which they are engaging, are a part of the real world (for want of a better phrase). This is in contrast to the experience delivered by fully immersive-document (as yet theoretical) where the reader cannot distinguish between the unreality and reality, and the interface between human and computer is invisible and frictionless.”2

The day was arranged into 3 acts or sessions. In the first session, Documents and Documentation, the focus was on how memory institutions document performance. Following on from that Exploring Performance as a Document looked at how we can document non-traditional aspects of performance. The third and final act, Beyond the Boundaries, considered what should be documented from newer forms of performance.

Performance Documents or Performance Documentation?

Following a warm welcome and introduction from Lyn and Joseph, the first session featured an excellent talk by Toni Sant, titled The Future of Documenting Performance: Plenty of Performance Documents but Not Enough Performance Documentation. Sant has a background is in Performance Studies, (holding an MA and PhD from New York University) has also lectured on performance and digital technology, in Malta, New York, most recently he has worked in the United Kingdom as Reader in Digital Curation at the University of Hull.

In his talk Sant spoke about Documentation from a Library and Information Science perspective and referred to the work of Suzanne Briet, whose manifesto on Documentation Qu’est-ce que la documentation?, was highly influential to a number of LIS thinkers, particularly Michael Buckland, whilst earning her the nickname Madame Documentation. In talking about Performance Documentation Sant used Briet’s definition of a document as ‘evidence in support of fact’ 3 and:

“any physical or symbolic sign, preserved or recorded, intended to represent, to reconstruct, or to demonstrate a physical or conceptual phenomenon”

As Bucklandstates, in his article What is a “document?”the implication of Briet’s work is that Documentation should not concerned with texts, but access to evidence.3 Sant champions Briet’s work on documentation over those of performance studies scholars such as Peggy Phelan, who claimed in her writings that performance cannot be documented:

“Performance’s only life is in the present. Performance cannot be saved, recorded, documented, or otherwise participate in the circulation of representations: once it does so it becomes something other than performance”4

Sant went on to argue that documentation of performance is often an afterthought and that there is a tendency to mistake documents for documentation. Documentation he said is the process of storing and organizing documents (physical and digital) in a systematic way to ensure long-term access.

Sant’s talk was a call to action, saying “forget Peggy Phelan” and arguing there was a need to focus less on documents and more on Documentation.

Connaissez-vous Suzanne Briet?

Renée-Marie-Hélène-Suzanne Briet was born in Ardennes, 1 February 1894, but grew up in Paris. She was part of a generation of women who would come of age in the wake of the First World War. After spending time as a teacher, Briet began her career in Librarianship, at the Bibliothèque National in 1924, and would not only bear witness to but also influence the development of the Library profession in France as a result of its convergence with the field of Documentation. In his article Suzanne Briet: An Appreciation Ronald E. Day claims that Briet’s vision of documentation and documentation agencies:

“…constituted a revision of librarianship and a radical redefinition of what we consider to be documents.” 5

Recognising the importance of the work of the staff in the national library, Briet wrote that it was the duty of librarians “to conserve, to catalog, to make [materials] accessible on the one hand; to orient and instruct on the other.“6

Her time at the BNF coincided with a great see of technological change, the year of her appointment (1924) saw the electrification of the 17th century Richelieu building, she described the effect of this writing:

“I attended the birth of electricity at the BN. . . . During winter season, and under cloudy skies, all work was impossible in the reading rooms and offices after three in the afternoon. . . . It was an unforgettable spectacle to see the green lamps burst into flower on the tables”7

Administrator Pierre-René Roland-Marcel’s efforts to modernize the services and structure of the BNF led to the creation of the Office of Documentation. In 1928 after remarking that the already ‘overburdened’ staff were struggling to answer written requests for information from the office, as it disrupted their normal activity flow, Briet was assigned responsibility for coordinating all such requests, assigning them to qualified Librarians or forwarding them onto the Office of Documentation, as necessary.8

In 1927 Briet was assigned the task of compiling a directory of special collections held across major French Libraries. At this time she was influenced by the Institute of Intellectual Co-operation (IIC) of the League of Nations, which made a number of recommendations regarding the establishment of national information centres in national libraries. According to Naack these recommendations included:

(1) each national library establish a “national information center” where researchers could find out in which library or special collection the printed materials or documentation they needed would be located; (2) that the national information center be adequately funded and provided with card catalogues, printed bibliographies, biographical sources, union catalogues and directories of special collections throughout the country; (3) that these national centers be in close contact with one another in order to answer questions about resources within their home country and to centralize researchers’ requests for information that would need to be answered abroad.9

Over the next two years Roland-Marcel and Briet laid the foundations for such a centre at the BNF, and developed plans for a Centre d’Orientation that would respond to requests for information from French and international researchers. From 1934 to 1954 Briet was in charge of the Salles des Catalogues et des Bibliographies, more commonly known today as Salle X.

Briet alongside chemist Jean Gérard was responsible for co-founding the Union Française des Organismes de Documentation (UFOD) in 1931, the french equivalent of ASLIB or the American Documentation Institution. Soon after she was tasked with surveying documentation centers across the country the results of which were published in a 1935 directory (Répertoire des centres de documentation en France), which identified n 1937 she attended the World Congress of Universal Documentation, in Paris, alongside other notable figures such as Paul Otlet, Henri De La Fontaine and H.G. Wells, the latter of which gave a lecture in which he argued that his concept of the ‘world-brain‘(a form of world encylopaedia) was a precursor for the concepts under discussion at the conference.10

“…included a general introduction to selection, acquisitions, cataloging, classification, indexing, diffusion, exploitation, and reproduction of documents. The second year focused on research and on documentation in the specialized fields, including the social sciences and economics as well as science and technology.”11

Following on from her interest in ‘professional education’, Briet was awarded a Fulbright grant to visit the United States from 1951 – 52, and whilst there she continued her survey of professional education. According to Maack, she also sought to understand the meaning of ‘reference work’, with of focus on technique rather than technology and on users and reference services, rather than information retrieval.12

In 1954 at the age of 60, she took early retirement to pursue a 2nd career, as a historian, studying Rimbaud, Rimbaud’s mother and Jean, Comte de Montdejeux. When her memoirs, were published, in 1976, she arranged them in alphabetical order, dispending with a chronological order in favour of presenting her recollections under key words, described by Maack as ‘idiosyncratic’.13

Briet died in Boulogne at the age of 95. When looking reflecting back upon her life and career she expressed the following as summary:

“At the age of twenty, I had as my motto: ‘To weep perhaps, but never to hate.’ At forty it was: ‘To serve.’ At eighty it could be: ‘To return to the Spirit’ “(l’Esprit) (1976, p.30).

Pour Briet Qu’est-ce que la documentation?

Briet’s treatise on documentation was published in 1951 by EDIT, the publishing arm of the UFOD, was not some lengthy treatise, but rather a slim volume stretching to around 37 pages long. It largely went unnoticed outside of France until the publication of Michael Buckland’s What is a Document? in 1997.

It begins with the definition of a document, not in terms of material object’s such as the book that Paul Otlet, favoured, but by declaring, “Un document est une preuve à l’appui d’un fait” “A document is evidence in support of a fact.” She then provides a more detailed definition claiming that a document is:

“any concrete or symbolic indexical sign[indice], preserved or recorded towards the ends of representing, of reconstituting, or of proving a physical or intellectual phenomenon.”14

Briet’s definition, dispenses with the notion of tieing documents to a physical format and instead focuses on a wider definition of documents, giving an example as follows:

“Is a star a document? Is a pebble rolled by a torrent a document? Is a living animal a document? No. But the photographs and the catalogues of stars, the stones in a museum of mineralogy , and the animals that are cataloged and shown in a zoo, are documents.”15

Briet’s explanation of documents is that objects can be documents when placed into a system such as a taxonomy, catalogue, or indice. Most famously she claims that even an Antelope could be a document, in the circumstance of it being a newly discovered species placed inside a botanical garden:

“Let us admire the documentary fertility of a simple originary fact: for example, an antelope of a new kind has been encountered in Africa by an explorer who has succeeded in capturing an individual that is then brought back to Europe for our Botanical Garden [Jardin de Plantes]. A press release makes the event known by newspaper, by radio, and by newsreels. The discovery becomes the topic of an announcement at the Academy of Sciences. A professor of the Museum discusses it in his courses.The living animal is placed in a cage and cataloged (zoological garden). Once it is dead, it will be stuffed and preserved (in the Musuem). It is loaned to an Exposition. It is played on a soundtrack at the cinema. Its voice recorded on a disk. The first monograph serves to establish part of a treatise with plates, then a special encyclopedia(zoological), then general encyclopedia. The works are cataloged in a Library, after having been announced at publication…The documents that relate to this event are the object of scientific classifying (fauna) and of an ideologic [idéologique] classifying (classification). Their ultimate conservation and utilization are determined by some general techniques and by methods that apply to all documents-methods that are studied in national association and international Congresses.”16

Lastly she argues “The cataloged antelope is an initial and the other documents are secondary or derived.” By this reasoning objects such as paintings, sculpture, photographs and films are documents, and even a person being studied perhaps for scientific, medical or anthropological reasons could be described as a document. Michael Buckland, in his article about Briet’s definition argues that although she doesn’t make her rules explicit the following can be inferred about defining documents:

Briet’s rules for determining when an object has become a document are not made clear. We infer, however, from her discussion that:

1. There is materiality: Physical objects and physical signs only;

2. There is intentionality: It is intended that the object be treated as evidence;

3. The objects have to be processed: They have to be made into documents; and, we think,

4. There is a phenomenological position: The object is perceived to be a document.

This situation is reminiscent of discussions of how an image is made art by framing it as art. Did Briet mean that just as “art” is made art by “framing” (i.e. treating) it as art, so an object becomes a “document” when it is treated as a document, i.e. as a physical or symbolic sign, preserved or recorded, intended to represent, to reconstruct, or to demonstrate a physical or conceptual phenomenon?17

Wild Antelopes

Returning to performance and performance documentation, we must ask what can Briet’s rules and Buckland’s interpretation of them tell us about how we document performance? Taking the rules as defined above the performance itself is not a document, any more than a wild antelope running around the plains of Africa, but writings, photographs, sound recordings and so forth of the performance can be considered documents. And these documents can, it could be said, in the spirit of Briet’s original assertion, be considered as the “evidence in support of fact” that the performance exists or took place in that they are “intended to represent, to reconstruct, or to demonstrate a physical or conceptual phenomenon”.

LIS can be a very broad discipline that covers everything from theories of information, social media, scholarly communication to the effects of the internet on human thought. It also supports and intersects with many academic disciplines, with elements of science, sociology and humanities. As digital technology has evolved the discipline of LIS has adapted to confront and consider issues that have arisen around the management, conservation, preservation of documents in the digital realm. It has also utilised the potential of digital technology and tools to not only preserve physical documents, but also make them available to new audiences.

One academic discipline which has also begun to harness the potential of digital tools and technology is the humanities. Much like LIS they too work with documents, such as books and manuscripts, and make use of digitisation, digital libraries and data mining. Indeed, as Welsh1 notes there has even been a debate as to whether LIS, as an academic discipline falls within the humanities, noting the placement of some iSchools within humanities department in some Universities, whereas in others, such as #citylis it is grouped with computer science. To further complicate matters, humanities itself has a subset known as Digital Humanities which as I noted before is concerned with utilizing Digital tools to enhance their understanding and knowledge of humanistic texts. The history of the Digital Humanities, dates back to the early 1990s, when humanities scholars realized that the internet could provide them with new methods for exploring and discussing scholarly texts. And in 1994 the Text Encoding Initiative(TEI) was launched as standard for the representation of texts in digital form.

Gabriel Harvey by Thomas Nashe via Wikemedia Commons

Gabriel Harvey and The Archaeology of Reading

Born in Saffron Walden circa 1550 Gabriel Harvey, was an English writer and friend of Elizabethan poet Edmund Spencer. He was a scholar and well educated studying Christ College Cambridge, before becoming a fellow at Pembroke Hall (later College), in 1570. After failing to be elected a master of Trinity Hall Cambridge, he would go onto complete his doctorate of civil law at Oxford. During the last decade of the 1500s he engaged in a pamphlet-war with Thomas-Nashe and retired in 1598, having again failed to obtain a mastership at Trinity Hall.2

As well as publishing commentaries he was a prolific annotator of books, his annotations have become the subject of study as much as his letters, providing a window of insight into the way in which reading was carried out in the early modern period for scholars such as Anthony Grafton and the late Professor Lisa Jardine. The density and extent of annotations made by Harvey, have proved a considerable challenge for anyone studying his texts. Not only did they include marginal notes, but also underlining of words, and use of symbols each with a specific meaning, requiring deciphering and understanding not only at page level, but also within the wider body of the text as a whole and perhaps also Harvey’s collection of books.

On Thursday October 13, UCL’s Centre for Lives and Letters (CELL) hosted a launch event for phase one of the Archaeology of Reading in Early Modern Europe. Having an interest in early modern history, Digital Humanities and libraries, I signed up to what was billed as a workshop on the history of reading and the Digital Humanities, to see what I could learn. The answer quite a lot!

A Digital Bookwheel

The Archaeology of Reading(AOR), is a digital humanities initiative from CELL, Johns Hopkins University, and Princeton University, funded by the Mellon Foundation. The project is intended to build upon:

…several decades of humanistic research that has focused upon the printing revolution of the sixteenth century, and the widespread practice by active readers of leaving often dense, interpretive manuscript annotations in the margins, and between the lines, of the books they read. This diverse evidence of annotation provides a considerable range of unique and largely untapped research materials, which reveal that readers—much as users of the internet today—adapted quickly to the technology of print: interacting intimately, dynamically, socially, and even virtually with texts.3

In many ways this could be an LIS project, current LIS research often considers and examines the way in which technology is changing the way we think and consume information. This project looks at annotation by readers such as Harvey as evidence of how they adapted to print, that is how print affected their reading habits. My first assignment for #citylis took a similar approach, in considering how the changes is in the form of documents, from Manuscript to Printed Book affected LIS and to a degree human thinking. LIS researchers have also drawn parallels between the information explosion of printing and that of the internet (See Bawden & Robinson 2000), and it was this that drew me to the event.

The evening took the format of presentations followed by a Q&A from a panel that included AOR-chaeologists. Earl Havens, Johns Hopkins University Principal Investigator for AOR, kicked off the vent with a talk about the genesis of the project, a meeting between himself and Anthony Grafton, where they were discussing how Harvey read his copy of Livy’s History of Rome. Information overflow was a theme of the discussions of the project and of Harvey’s own writings and readings, as co-principal investigator Matthew Symonds (UCL/CELL) talked about their approach of treating Harvey’s annotations, as a dataset, he gave a useful definition of big data, as being ‘too much information’ for one person to handle.

Symonds talked about the role of curation saying that the word is not commonly recognised in the contact of Digital Humanities projects, but that it is a bad sign if projects don’t talk about curation, arguing that it affects decisions and involved the prgmatics of corpus selection, getting not just the books, but also the right editions and taking care of them.

Dr Jaap Geraerts, Postdoctoral fellow at CELL, gave an overview of the technical aspects of the project, discussing the different layers served up by the interface of the AOR website. This includes a storage layer, archive layer and a tools access layer which an IIF API for serving up images, through the Mirador viewer. The use of IIIF ensures that the project integrates standards which will allow for future interoperability and allow for future migration to interoperable viewers with greater capacity. The top two layers comprise the AOR website and the aforementioned viewer.

Technical structure of the AOR – Source: archaeologyofreading.org

He went on to discuss how the different teams kept in touch via fortnightly Skype meetings, during the two year development period, saying also that there was close integration between the developers and the humanities staff.

Geraerts gave an interesting presentation on the development of the XML framework used for the project, highlighting how they built a custom specification to accommodate the variety of different types of annotations created by Harvey. He explained that they chose an XML Schema over simple transcription of the annotations, as an unstructured data approach would not have been sufficient to allow them to answer the questions they wanted to ask. For AOR it was decided that they would create their own schema, rather than use an existing one, such as the one developed for TEI which seen as too ‘top-heavy’ for their purposes. The Schema developed was constructed around classification of different annotation types, but is also flexible enough that it could be easily updated to allow the inclusion of additional books. It also takes advantage of XMLs rich data functionality to allow the tagging of mentioned authors and cross searching the entire corpus.

In all 13 books were chosen for the project with the 13th being purchased and immediately digitised by Johns Hopkins, specifically for the project. All annotations were translated from Latin to English, and across the entire corpus the captured nearly 230,000 words to create the data-set. The platform allows a range of query based searches and includes an advanced search function which allows you to combine searches across multiple annotation types.

Example of advanced search in the Archaeology of Reading

Silence and emotion in the Margins

Arnoud Visser (University of Utrecht) gave a presentation gave an interesting presentation on the presence of silence and emotion in Harvey’s annotations, looking at what was unwritten, absence or alluded to in Harvey’s marginalia. He cited various examples of where Harvey had written either cryptic or admonishing marginalia, either addressing himself or the writer.

In one example he wrote in his copy of Livy:

“Multa uix audeo scribere, qua[e] obitèr cogito legens..” “Much of what I think in passing while I am reading, I hardly dare to write down…”

P.481 of Gabriel Harvey’s Livy featuring the annotation: “Much of what I think in passing while I am reading, I hardly dare to write down…” (bottom of page)

Elsewhere, he implores himself to spend more time simply reading rather than annotating, writing:

” It would be proper for me and expedient for a man of action to do less writing, and much more reading. Look, Livy himself is equivalent to all comments of the academy, or observations in the world.”

Harvey’s Livy with the annotation reminding himself to: “do less writing, and much more reading”

Visser compares Harvey’s interactions with his texts to Luther’s reading of Erasmus, arguing that much like Luther Harvey was not a ‘kind reader‘, citing pages in Luther’s own books where ink splodges on the pages where left where he had slammed the book shut in anger. As he writes in Erasmus, Luther and the Margins of Biblical Understanding:

“The marginalia vividly show which arguments triggered Luther’s ire. Ink marks on pages opposite to those with heated notes reveal how Luther on some occasions closed the book without even waiting for the ink to dry.“4

A slide from Arnoud Visser’s Presentation on emotion in Harvey’s MarginaliaLuther’s copy of the New Testament in which he describes himself as ‘not a kind reader’ via Annotated Books Online

By contrast Harvey at least appears more respectful and even admiring of his authors, as seen by Anthony Grafton and the aforementioned late Lisa Jardine in their now seminal article on how Harvey read Livy when they note that:

Near the beginning of the Livy he has a long note on Livy’s style and its importance: Livy’s style, especially in the speeches. No Latin or Greek speeches deserve more careful reading or meticulous selection than Livy’s; Perion assembled them into a sort of technical order. Hence, when I have time to read, or to imitate, or even to emulate speeches, I prefer no others to these, or others of Livy’s, which are both sharp in sense and polished in expression.

After the presentations had finished there was a drinks reception, including commemoration of Lisa Jardine, and the announcement of a further grant from Mellon Foundation for Phase 2 of the project. This will be more ambitious and aims to make 21 books belonging to the lost library of Dr John Dee from British libraries, UCL and the Royal College of Physicians. There was also a speech by Bill Sherman, Head of Research at the V&A, and John Dee scholar, who spoke about how Dee’s marginalia are far more visual than Harvey.He is currently working on a study of visual marginalia called The Reader’s Eye, asking if ‘reading’ is the right word to describe the activities of Dee and Harvey. The visual nature of Dee’s reading will pose challenges for the next phase requiring significant reworking of the xml schema.

During the reception I had a chance to briefly talk to some of the panellists and guests, such as Geraerts and the Librarian from the Royal College of Physicians, the latter of which was kind enough to tell me more about John Dee and his Library.

Early Modern Information Retrieval

It was a very interesting event, despite the fact that I had never heard of Gabriel Harvey prior to the evening, and new equally as much about the study of marginalia. And it made me think about whether marginalia can be seen as documents in their own right. Clearly they are mostly (con)text dependent, I believe they may sometimes be classified as a paratexts, but can we consider these to be documents in their own right distinct from the original text?

Furthermore, Harvey’s marginalia form a kind of early modern hypertext with numerous cross references between parts of individual texts and across multiple texts, as Grafton and Jardine note:

“In addition to the richness and density of annotation throughout them, there is persist- ent echoing of sentiments from one book to another; cross-referencing of one of these authors in the margins of another; recognizable continuity of handwriting, to the extent that we can sometimes hazard a guess as to which book succeeded which other in the circulating process of reading and annotation; narrative notes about contemporary or near contemporary affairs continued from the margins of one volume to another..”(p.51)

This multithreaded approach to reading makes it harder to view the marginalia of individual texts in isolation, but rather as constituent parts of a larger whole. In LIS terms Harvey’s approach to his texts could be considered a form of early modern hypertext or linked data, where the reader moves back and forth between documents. His marginal notes make it apparent that he worked on several books at a time. This was by no means an insignificant undertaking, practically and logistically it required having space to not only access but also write in up to 15 books at a time with handwriting which was described, by rival Thomas Nashe no less, as being more elaborate than “many a copyholder or magistral scribe that holds all his living by setting schoolboys copies”5

Harvey’s practices of reading could only have been possible through use of an invention of Agostino Ramelli, the book wheel. The book wheel was one of several designs published by Ramelli, a military engineer, in his bookLe diverse et artificiose machine del Capitano Agostino Ramelli (The various and ingenious machines of Captain Agostino Ramelli). The machine utilized a system of cogs and gears, known as epicyclic gearing, normally found in astronomical clocks, to ensure that all the books remain at a constant angle so that the reader could keep their place.

“This wheel is made in the manner shown, that is, it is constructed so that when the books are laid on its lecturns they never fall or move from the place where they are laid even as the wheel is turned and revolved all the way around. Indeed, they will always remain in the same position and will be displayed to the reader in the same way as they were laid on their small lecturns, without any need to tie or hold them with anything”7

For me the discovery of the existence of such a machine is almost as intriguing as the books of Harvey and explains the choice of logo for the AOR website and blog. It also further informs us about early modern approaches to reading and information retrieval, as Grafton and Jardine put it:

“The book-wheel and the centrifugal mode of reading it made possible amounted to an effective form of information retrieval – and that in a society where books were seen as offering powerful knowledge, and the reader who could focus the largest number of books on a problem or an opportunity would therefore appear to have the advantage”.8

Just as we(in LIS) study the history of books, documents and Libraries, so too we should consider also the history of reading, and reading practices to gain greater insights into how knowledge is acquired from books and other how the understanding of and knowledge. As Haven’s remarked following the announcement of the project in 2014:

“There are so many parallels between our project, and the digital world of information that we live in today….these notes reveal a largely unvarnished history of personal reading within the early modern historical moment. They also embody an active tradition of physically mapping and personalizing knowledge upon the printed page. The added practice of referencing and cross-referencing other works in these marginal annotations also allows us, like those early readers, to engage with the presence of ‘virtual libraries’ within the space of a single book.”.9

Kicking off the autumn season of LIS related events, I recently attended an excellent #bldigital talk on EThOS and Multimedia Thesis, alongside #citylis students @NowrinShohana and@Chrisjph. The event hosted in the British Library’s Bronte Room was described as a celebration of non-text and multimedia outputs being submitted with digital theses, and was full of intrigue and surprises.

EThOS and the PhD Theses

EThOS is the UK national database for theses, operated by the British Library, it stores details of all UK PhD theses, and provides full-text downloads for the majority of submissions either directly or through links to individual institutions. Traditionally PhD Theses are heavily text-based and although there have been previous attempts to incorporate multimedia outputs into them, there is still limited support for these, as we learnt during the evening and where they have been included it has largely been in analogue format as part of the appendices. To date only one

The event focused on the issues faced by PhD candidates who are innovating with digital and multimedia as part of their research, but face difficulties in incorporating such outputs into their theses. The evening began with a brief introduction from Stella Wisdom (@miss_wisdom)Digital Curator at the British Library, who welcomed everyone to the event which before handing over to the evenings chair Coral Manton(@CoralAnimation). Coral is herself a current PhD candidate, at University of Plymouth’s i-DAT research and design collective, she has professional background working in Libraries, Museums and Immersive Digital Practice (something that sounds very relevant to #citylis, which often talks about how we can records immersive documents and experiences). Coral’s current research is focused on the development of an immersive museums collections database, creating data visualisations of collection data enabling “enhanced curatorial and visitor understanding”1

As part of a research placement with the British Library, Coral has been investigating multimedia and non-text PhD research and examining ways in which EThOS can adapt to meet the challenge of such outputs. This has led her to meet a variety of PhD candidates whose theses don’t conform to the traditional text based output or whose research has led them to use digital technologies, such as motion capture, virtual avatars or apps for data-collection. Among her discoveries was that many of the researchers she spoke to had had very little or no contact with their Library, especially with regards to issues of data management and archiving, leading to situations whereby they were unable to include images and artwork,that formed an integral part of their work, in their final submission. (See this blog post more details of Coral’s work).

Imogen Lesser

Lesser: Peake was an artist as well as a writer; I identified all the spaces in his texts, & put them into an Excel spreadsheet. #BLdigital

The first speaker of the evening was Imogen Lesser (@ImogenLesser) from the University of Kent, her doctoral research is on the architecture of the language used Mervyn Peake’s Gormenghast Trilogy, and the spaces created within the texts. As part of her research she has used both digital technology and traditional media, such as drawing and sculpture to convey her ideas and map out the spaces and relations between spaces created within the text of Peake’s work. Her first step was to compile a digital document in the form of an excel spreadsheet identifying spaces within the text, from which she produced a digital map, using AutoCad of the relationship between spaces found in the four texts. To better understand the spaces detailed in Peake’s work Imogen produced a series of incredibly detailed drawings as well as models. She took the digital maps and printed them out at before drawing over them to create A1 1:10,000 scale maps as an aid to her writing.

To help showcase her work and make it more accessible she put on an exhibition in which she displayed her drawings and sculpture alongside excerpts from the texts. One of the main problems that Imogen is facing is that while the maps and architectural drawings are the most effective way of representing the spacial data, extracted from the text providing a more accessible means of disseminating her research, there is no effective means of incorporating such work into her thesis. Even though her drawings and models are the most effective means of conveying and examining the spaces in the text she is still expected to write 80,000 words, architecture is a language in itself, which can not effectively be related through text, this relates closely to something that Coral Manton said about video, arguing that rather than having to describe a video, it would be simpler to be able to include the video as part the thesis.

This would be a common theme for the evening, how to effectively convey research that doesn’t lend itself to textual methods of description, the emphasis on text based thesis, excludes the use on non-text media, even when they are the most effective means of relating information. For Lesser one of her main concerns is the storage and archiving of her work such as drawings through her library and their accessibility. If she submits her drawings as an appendix to her thesis, they won’t be stored or accessible through the Library. A better system for archiving and making them accessible is needed.

Craig Hamilton and Harkive

Craig Hamilton (@craigfots) from the School of Media at Birmingham City University was the evenings second speaker. Craig’s research focuses on “how the experience of listening to and consuming popular music is changing, with a particular focus on digital technologies.”2 In order to do this Craig developed Harkive an online platform that utilises digital crowd-sourcing techniques to collect stories and comments about the how, where and why of people’s music listening habits.

Craig’s background is in music and music technology but he had develop skills of a data scientist and programmer in order to make sense of the data he has collected through the Harkive project. He spoke about how he had to learn R, a programming language for handling data (see here for more details) and was able to develop his skills through utilising podcasts, meetings with “tech-guys” and attending conferences, in order to understand how to utilise and harness the data he would be gathering. It took him 9 months to learn R from scratch, through a culture of knowledge sharing and collaboration with members of the R online community, something he believes he would never have achieved through reading a manual.

His research has produced to a range of non-text and multimedia outputs, which has helped him in explaining his research to others, attract collaborators and disseminate his research. All of the outputs he has created he considers part of the work he has done for his PhD and include a Data Explorer, the Harkive API, and code repository. The latter allow others to reuse and build upon his existing code, or reuse the data in their own work. He has also created a series of blogs, how-to-videos and a Harkive Podcast, to aid the dissemination of his research. For Craig dissemination and finding ways to bring his research to a wider audience is important and he cites the fact that he receives public funding makes it his responsibility to ensure that his research is widely disseminated and accessible. On the question of archiving his research or data with the Library, Craig said that it wasn’t something he had considered or been asked. He uses GitHub to manage his code and said that the his funders (AHRC) did not appear to be directly concerned with the infrastructure surrounding his data, but were very pleased that he appeared on Radio 4.

Tara Copplestone Archeogamer

The last speaker of the evening was Tara Copplestone (@gamingarchaeo) a PhD Student at the universities of York and Aarhus. Her research looks at how the creation and communication of video games might provide new methods of building arguments about archaeology. She focuses on making arguments through the narrative of games and game-play rather than through reading. She had written a postgraduate thesis about

Her research into “Archaeogaming” interrogates how creating and communicating through the video-game media form might provide novel methods of assembling arguments about archaeology. Part of her thesis involves creating games and examining the ways in which video-games depict past. This involves going out to archaeological sites and creating video-games with the archaeologists on-site, working with games publishers to find out why they depict the past in the way they do and considers other ways in which they could present history in games. She also gets archaeologists to make their own games and observes how the medium of games influences their choices and narratives in the depiction of archaeology.

Although Tara’s focus is on archaeology through games, it could be argued that her work is highly relevant to LIS. At #citylis we have often discussed the challenges that LIS practitioners face when recording and documenting immersive experiences and documents, as well as considering the nature of the document in the age of virtual reality and the evolving internet. The forthcoming Documenting Performance symposium will examine the document in relation to theater and performing arts and considers how we can document and preserve the essence of live performance and it seems to me that Tara’s practice and work could could be another perspective that informs documentation in this sense.

Her approach has been to focus on the process and the branching narratives of the video game are examined placing her research “at the intersection of code, art and narrative and has a particular focus on challenging how academic and creative practices can interpolate with each other through the video-game medium.“3

For Tara using games is an effective way of exploring how archaeology is carried out and how archaeology is explored and thought of. Although she has produced 8 different case studies, its not the outcomes that are important to her compared to the process. She made reference concept of ‘procedural rhetoric‘ coined by Ian Bogost,as well as to Marshall McLuhan’s ‘the medium is the message’ to affirm that the process and experience of gaming is an argument (rhetorically)in itself.

Tara: making reader co-creator in your thesis is problematic. PhD submission also requires closure; can’t be an ongoing process. #BLdigital

A significant problem she faced was how to record all aspects of the process, which couldn’t necessarily leading her to create various additional outputs that could be included in her thesis such as the Archaeogaming idea generator as well a various Dummies In addition to this she created her own application system in order to record all the many elements of the process, beyond what screen capture or code itself could achieve, leading to to questions of how to store the 32 terabytes of data that she has generated from working on this every day for two years. The most common suggestion she gets from well meaning advisers is to transcribe it and “Put it in the appendix” effectively putting her in a position of having to produce two PhDs!

Another difficulty she has faced is issues of Copyright and plagiarism. She had to stop publishing her games to online open platforms because of the risk of self-infringement. A third issue she has had to deal with relates to issues of co-creation, co-authorship and deviating away from the linear structure of traditional documents and models of knowledge transmission, towards more branching narratives, where the reader is also author.

Q&A

Following on from the presentations was ain which the panel took questions from the audience. One of the more interesting questions from an LIS perspective was about what support could Librarians provide. This was met with somewhat muted response from the panel, who stated that they had little to no help from their Librarians.Hamilton stated he hadn’t considered asking the Library about storing his data, although he said he could consider giving his code to the Library, he wasn’t fully sure if this would be of value. For Lesser, she felt that their needed to be greater advocacy from Librarians about how they could support candidates pursuing no-traditional PhDs, especially at the start of the process. Copplestone on the other-hand said that she was working with the Library to develop best practices, whilst she learnt about Copyright the Library learnt about games, in many cases she said that people only understood her research once they had participated in it.

All on the panel agreed that Multimedia PhDs enabled research to be more widely disseminated to the public and felt that they had an important responsibility to disseminate and communicate this knowledge to the public as widely as possible. Asked about the sector is adapting to better support non-text and multimedia PhDs they said that its a slow process of incremental change, but changes are taking place, although its still down to researcher to initiate the dialogue.

Conclusion

This was a great evening with some great speakers, whose passion for their work is unmistakable despite the challenges they face. The evening brought into focus the question of what is a PhD, to paraphrase fellow guest Karolina Andersdotter (@Karolingva) is it merely a 80,000 word PDF?, oral defense (viva) or are we measuring something more?How important is the presentation of knowledge and learning to understanding? And does the formal language of PhDs and academic writing impede the wider understanding of academic research. In many ways this also ties into the question of whether knowledge and academic research should be consider public good? And if it is how do we go about making it accessible to the wider public.

For the LIS community we can consider questions of how we can assist in the documenting and recording of non-text outputs and processes. We have been considering what a document is and how we can record immersive experiences, we should look for input from researchers such as Craig, Imogen and Tara and see what their perspective is.

We also need to consider how we can provide better solutions for the storage and accessibility of research data and even non-text outputs whether they are games, video audio or other forms that are not yet obvious for PhDs and communicating such solutions to the wider community. Clearly, as well, we should be proactive in our approaches, it’s not enough for us to sit an wait for researchers to come to us, we need to be collaborating with them to develop these soloutions.